A male employee has won a direct discrimination claim on the grounds of his employer’s failure to pay enhanced shared parental pay while offering enhanced maternity pay.
When Shared Parental Leave was introduced in 2015 commentators and employment law anoraks debated the question of whether or not failing to match enhancements could amount to discrimination against men who are unable to take maternity leave. The prevailing view was that a man taking SPL could only compare himself to a woman taking SPL, not a woman taking maternity leave. Therefore, provided that an employer offered the same ShPP rates to men and woman, there could be no claim for discrimination. Indeed, that was the conclusion that the first employment tribunal faced with this issue came to in Hextall v Chief Constable of Leicestershire Police.
The tribunal in the second employment tribunal case on this issue, Ali v Capita Customer Management Ltd, has taken a different approach. It was persuaded by Mr Ali’s argument that it was open to parents to choose which one of them took leave to care for their child and it followed that it was direct sex discrimination to then choose to pay a woman (who could access enhanced mat pay or statutory ShPP) more than a man (who could only access statutory ShPP) in respect of that leave. The tribunal took a broad view, comparing both types of leave as being for the same purpose, i.e. the care of a new baby. It held that the first two weeks of maternity leave could not be comparable, since this time must be taken by a new mother for health reasons, but after that period it is open to a man on SPL to compare himself with a woman on maternity leave.
Given that this decision conflicts with the decision in Hextall, employers should treat the outcome with a degree of caution for now. Both decisions are at employment tribunal level, which means that they are not binding on other employment tribunals faced with the same issue. However, both decisions are being appealed to the EAT and it is hoped that at that stage we will receive some firm guidance on this issue which will be binding on employment tribunals that follow.