Share and share alike - should fathers taking shared parental leave be paid the same as mothers on maternity leave?
We previously reported on two cases in which the Employment Tribunal reached different conclusions as to whether paying enhanced pay to women on maternity leave, but only paying statutory pay to men taking shared parental leave, was discriminatory on the grounds of sex. (For a recap on shared parental leave, click here).
Both cases were appealed to the Employment Appeal Tribunal (EAT), and the outcome of one of them has now been released (the other case was heard in January, and we are still awaiting the outcome).
In Capita Customer Management Ltd v 1) Mr M Ali and 2) Working Families (2017), the EAT has ruled that it is not direct sex discrimination to pay enhanced maternity pay whilst only offering statutory shared parental leave pay. This is because, the EAT said, the situation of a father taking shared parental leave was not comparable to that of a mother taking maternity leave. Maternity leave and shared parental leave serve different purposes – maternity leave is given to enable the mother to take leave for her own health and wellbeing, whereas shared parental leave is for parents of either sex to take leave to care for their child.
The correct comparator for Mr Ali was a woman taking shared parental leave. As he would have been offered shared parental leave and pay on the same terms as a woman taking shared parental leave, there was no discrimination.
It is possible that this case could be appealed further, and we will keep you up to date on any developments.
In the meantime, this case means that employers can offer enhanced maternity pay to mothers, without being seen to be discriminating against fathers (provided that shared parental leave is offered to men or women on equal terms).
It is worth noting, however, that the decision in the Ali case is relevant only to the first 14 weeks after birth (being the minimum period of maternity leave required under EU law, to ensure for the health and safety of the mother). The EAT did allude to the fact that a case brought on different facts i.e. after the period of 26 weeks’ ordinary maternity leave (as provided under the UK’s Maternity and Parental Leave Regulations) could be decided differently, if it were found that the purpose of maternity leave after the 26 week period may no longer be the mother’s recovery from childbirth/special bonding period between mother and child.
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 enquiries@pureemploymentlaw.co.uk).