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Employers not offering enhanced shared parental pay - is this discrimination?

Employers are not discriminating by enhancing maternity pay without offering enhanced shared parental pay, Court of Appeal rules

In the two cases being heard together,  Ali v Capita and Hextall v Chief Constable of Leicestershire Police, the court said there was “nothing unusual” about such policies and unanimously rejected both claims.

Both Ali and Hextall had brought claims suggesting that they were being discriminated against by not receiving enhanced shared parental pay when their female colleagues were entitled to enhanced maternity pay. Ali argued that he had suffered direct discrimination by paying him less than a woman and Hextall suggestedthat the policy of paying women on maternity leave more than those on shared parental leave indirectly discriminated against men. Both claims were dismissed.

At Capita, maternity pay of up to 39 weeks was available to women, with the first 14 weeks enhanced maternity pay paid at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking shared parental leave received statutory shared parental pay only. The policies at Leicester Police were similar save that women were entitled to 18 weeks’ full pay followed by 39 weeks of statutory maternity pay.

Direct Discrimination

The court held that "the predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner." Only women can experience childbirth (and maternity leave) which is why women have ‘special protection’ under EU law. Unlike shared parental leave, which is designed for the purpose of childcare, maternity leave is designed to protect the health and wellbeing of pregnant and/or birth mothers.

The court therefore held that men on parental leave and women on maternity leave are not in comparable positions for the purposes of Equality Act 2010.

Indirect Discrimination

The court found that an indirect discrimination claim cannot be brought where there would be equal pay save as for a specific exception (that the law allows employers to make exceptions for women who are pregnant, have recently given birth or who are breastfeeding).

Equal Pay

Paragraph 2 of Schedule 7 to the Equal Pay Act 2010 says that a “sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth” and the court found that this was wide enough to include enhanced maternity pay.

Comment

Jenny Arrowsmith, employment partner at Irwin Mitchell, acting for Capita, said: “The court made it clear that that there is no room for a direct, indirect or equal pay claim arising from paying women on maternity leave more than parents on shared parental leave.

“Parliament has made a statutory exception which gives special treatment to a woman in connection with pregnancy or childbirth. That special treatment is, by definition, not available to anyone other than a birth mother, which means the partners of birth mothers are not discriminated against if they do not receive enhanced benefits for taking leave to care for their newborn.

“This decision will be welcomed by employers that pay higher rates to women on maternity leave than to parents on different types of family leave. It’s also good news for women. Had the decision gone the other way, employers may have reduced their maternity pay to statutory rates because they could not afford to equalise pay rates to those taking shared parental leave – something Working Parents acknowledged in their submissions.”

Employers should however note that this is not a problem that will be going away as the landscape around families, shared parental leave and childcare is constantly evolving and changing. Employers should continually reassess their approach to family rights and associated pay, particularly against the UK backdrop of gender pay inequality.

Posted on 6 June, 2019 by Ortolan

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