Failure to enhance shared parental pay was not discriminatory

This time last year we covered the latest cases dealing with the question of whether it was discriminatory for an employer to pay enhanced maternity pay to women on maternity leave, but only statutory shared parental pay to an employee taking shared parental leave.

As you may recall, the Employment Appeal Tribunal concluded in both cases that it was not discriminatory.

The employees appealed against the decisions to the Court of Appeal. The two cases (Ali v Capita and Hextall v Leicester Police) have now been jointly decided by the Court of Appeal, and judgment was issued last week.

The judgment makes interesting reading, and draws a clear distinction between maternity leave and shared parental leave. The Court of Appeal concluded that maternity leave is a separate category of leave because it is to enable the mother to prepare for and recover from the birth from a health and safety point of view, unlike shared parental leave which is for childcare purposes. For example, maternity leave applies even if there is no baby to look after (such as in cases of miscarriage or stillbirth), whereas shared parental leave can only apply to care for a child (and only where the mother chooses to give up her statutory maternity leave).

In both cases the Court of Appeal felt that the correct comparator would be a woman taking shared parental leave, rather than a woman taking maternity leave. A woman in that situation would have been paid statutory shared parental pay in the same way, and therefore the men were not able to show that they had been treated less favourably.

This latest decision does provide some comfort to employers who currently offer enhanced maternity pay but not enhanced shared parental pay, although it is still the case that the takeup of shared parental leave is still extremely low (only around 1% of eligible employees).

However, both of the employees have indicated that they intend to seek permission to appeal to the Supreme Court, so the cases are not over yet. We will of course keep you updated on any future developments.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.