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EAT overturns shared parental pay sex discrimination decision

BY Miranda Hughes
Employment Law & HR

You may remember that we reported the case of Ali v Capita Customer Management Ltd in June of last year. In this case, a male employee won a direct sex discrimination claim on the grounds of his employer’s failure to enhance shared parental pay in the same way as occupational maternity pay.  The tribunal took a broad view, finding it discriminatory to pay a woman more than a man in respect of leave to care for their new baby, and determining that maternity and shared paternal leave were for that same purpose.

The EAT has now heard the appeal of this case and has overturned the tribunal’s decision. This was on the basis that the pay for a male employee taking shared paternal leave cannot be compared to the pay of a female employee on maternity leave because the purpose of the leave is different. The primary purpose of maternity leave is aimed at the health and wellbeing of the mother whilst shared parental leave is for the care of the child.

It ruled that, rather than using a female employee on maternity leave and pay as a comparator, the correct comparator would be a female employee on shared paternal leave and pay. As shared parental leave was paid at the same rate for both male and female employees, there was no direct sex discrimination in this case. The EAT did say it may be possible to argue that after 26 weeks of maternity leave, the purpose changes from recovery from childbirth to mother/child bonding, at which point a comparison could be made with shared parental leave and pay. 

In addition, the EAT stated that even if the comparator had been correct, this would not be discrimination due to the exception contained in the Equality Act 2010. This provides that women can be afforded more favourable treatment in connection with pregnancy or childbirth. 

The Government has recently invested £1.5 million in its “Share the Joy” campaign to raise awareness of shared parental leave after HMRC revealed that less than 1% of those eligible had made use of it in 2016. Part of the reason for this low uptake is attributed to financial constraints as often the father earns more than the mother and employers do not tend to enhance shared parental pay in the same way as they do maternity pay. This decision will no doubt come as a blow to those campaigning for greater uptake as, according to this decision, employers will not be guilty of sex discrimination if they fail to enhance shared parental pay in the same way as maternity pay.

There is a glimmer of hope for those who advocate for equal treatment, however. The very similar case of Hextall v Chief Constable of Leicestershire Police (which was heard in the ET around the same time as Ali and was rejected for slightly different reasons) has also been appealed and a decision from the EAT is awaited. We will update you as and when this is reported but, until then, if you have any questions about shared parental leave or family friendly rights in general, you can get in touch with your dedicated employment solicitor.

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