UK: Does Offering Enhanced Maternity Pay Discriminate Against Men?

April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (ShPL). A mother can elect to curtail their maternity leave period two weeks after giving birth. She can then elect to convert the unused portion of that leave, so that up to 50 weeks' statutory leave and 37 weeks' statutory pay can be shared between both parents. BUT can employers offer enhanced contractual maternity pay to mothers for any part or all of those 50 weeks, but only statutory shared parental pay to fathers?

The Employment Appeal Tribunal (EAT) in Ali v Capita Customer Management Limited has now confirmed that it is not direct sex discrimination for employers to offer 14 weeks' enhanced maternity pay but only statutory ShPL pay.

While this case is in line with Government guidance and the traditional view, it is notable that this case concerned an enhanced maternity pay period of only 14 weeks which happens to be the minimum maternity leave period required under the EU Pregnant Workers Directive. As such, a question mark remains where enhanced contractual maternity pay period exceeds 14 weeks.

The baby elephant in the room

Whether an employer who fails to match maternity pay enhancements will face a successful discrimination claim from a man on ShPL has been the elephant in the room for some time. There is no express obligation on employers in the voluminous ShPL legislation to match enhanced contractual maternity pay. But are employers obliged to do so under the Equality Act 2010 in order to avoid discrimination claims from men on ShPL receiving less pay than women on maternity leave? Does and, if so at what point does, the primary aim of time off following the birth of a child go from protecting the health and wellbeing of the mother to time off for caring for an infant?

In March 2017, an employment tribunal in Ali v Capita Customer Management Limited found that the employer directly discriminated against Mr Ali when it offered enhanced contractual maternity leave pay to female employees for the first 14 weeks of maternity leave but only offered him enhanced contractual pay for two weeks' paternity leave followed by 12 weeks' statutory ShPL pay. The tribunal accepted that the disparity was founded on an assumption that mothers are best placed to undertake caring for a baby, but that assumption was no longer valid in today's society.

But a few months before the Ali decision, a different employment tribunal, in Hextall v Chief Constable of Leicestershire Police found an employer's policy of offering 18 weeks' enhanced contractual maternity pay but only statutory ShPL pay was not discriminatory.

What is shared parental leave pay?

The default position in relation to ShPL Pay is that it is paid at the flat statutory rate - currently £140.98 (rising to £145.18 from 1 April 2018) per week. Some employers offer contractual shared parental leave pay that is more favourable than the basic statutory entitlement. What is clear even before this decision, is that an employer cannot offer enhanced contractual ShPL pay to mothers only. If an employer chooses to offer enhanced contractual ShPL pay it must offer it to anyone eligible to take it (both mothers/primary adopters and fathers/mothers' or primary adopters' partners).

BUT - and this is the big question - what is the position for employers who offer enhanced contractual maternity pay for women but statutory ShPL pay for men and women?

The Government's view is that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay. Employers are free to offer more generous enhanced arrangements if they wish, but are not obliged to do so (the 'Employer's Technical Guide to Shared Parental Leave and Pay' September 2014). But this is simply the Government's view.

Why the uncertainty?

Under section 13(6)(b) of the Equality Act 2010 when a man is looking to establish less favourable treatment for the purpose of a sex discrimination claim, 'no account is to be taken of special treatment afforded to a woman in connection with pregnancy and childbirth'.

The introduction of ShPL allowing for conversion of maternity leave to ShPL after only two weeks, increases the focus on the underlying aim of maternity leave. Does there come a point in time when maternity leave is no longer designed to protect a woman's biological condition following pregnancy and childbirth and instead becomes childcare?.

In Mr Ali's case, the employment tribunal stated:

"It was not clear why any exclusivity should apply beyond the two weeks after birth. In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity."

On that basis, the employment tribunal found the employer had directly discriminated against Mr Ali as the provision of enhanced maternity pay after two weeks did not fall within the special treatment in connection with pregnancy and childbirth exemption in section 13(6)(b). But the Employment Appeal Tribunal (EAT) has now disagreed.

Health and wellbeing of the mother not child care

The EAT has held that the tribunal was wrong to find the purpose of maternity leave and pay after two weeks (the compulsory maternity leave period) is for the care of the child. That finding was contrary to the purpose of the Pregnant Workers Directive which requires that women receive statutory maternity leave and pay for a minimum of 14 weeks. The Directive makes it clear that maternity leave and the pay associated with it are for the health and wellbeing of a pregnant woman, one who has recently given birth and/or who is breastfeeding. As the EAT states:

"whilst a woman on maternity leave will no doubt take care of her baby, that is not the expressed or primary purpose of such leave. By contrast the purpose or reason for shared parental leave is for the care of the beneficiaries' child".

In the EAT's view, Mr Ali's circumstances were not comparable to a woman who had recently given birth. The correct comparator was instead a woman on ShPL, who like Mr Ali, would only receive statutory ShPL pay under the employer's policy.

But the grey area persists

It is important to note that Mr Ali's case concerned an employer's policy that only provided enhanced contractual maternity pay for the first 14 weeks and so fell squarely within the minimum leave and pay period set out in the Pregnant Workers Directive for the health and wellbeing of the birth mother.

But what about employer policies offering enhanced maternity pay in excess of 14 weeks? Does there come a point in time when maternity leave and pay is no longer designed to protect a woman's biological condition following pregnancy and childbirth and instead, its purpose becomes childcare?

On the one hand, under the UK legislation, surrogate mothers and other birth mothers who give their child up for adoption are entitled to take the full period of statutory maternity leave and pay, regardless of whether or not they continue to have contact with the child following the birth (also entitled are those who sadly suffer a stillbirth). This indicates a primary purpose of maternity leave being for the woman's health and wellbeing following pregnancy/childbirth.

On the other hand, the EAT noted that it may be, as suggested by Working Families who intervened in the appeal, that after 26 weeks (the Ordinary Maternity Leave period) the purpose of maternity leave and pay may change from the biological recovery from childbirth and special bonding period between mother and child, and it may at that point be possible to draw a valid comparison between a father on ShPL and a mother on maternity leave. As such, the EAT appears to leave the possibility of a challenge to policies offering enhanced maternity pay in excess of 26 weeks but not enhanced ShPL pay.

While the EAT's judgment refers to the case of Mr Hextall (see above) and the same judge heard the appeal, the EAT's Hextall judgment is still outstanding. The case concerned an employer's policy which offered enhanced pay for 18 weeks. As such it may shed a bit more light on enhanced maternity pay periods exceeding 14 weeks (though Mr Hextall only actually took 14 weeks ShPL).

What should employers consider now?

As has always been the case, ensure shared parental pay policies treat mothers/primary adopters and fathers/mothers' or primary adopters' partners equally (see our earlier insight Shared parental leave: the curious case of Mr and Mrs Snell).

In an era of changing traditional gender roles with more men wanting to take an active role in child-rearing from an early age, employers should consider whether to offer enhanced shared parental pay which mirrors any enhanced maternity pay policy. Ask yourself:

  • Will enhanced ShPL pay assist in attracting and retaining talent in your organisation?; and
  • What are the potential discrimination risks versus costs if you offer enhanced maternity pay in excess of 14 or 26 weeks but not enhanced ShPL pay?

Responding to the EAT judgment, Working Families' Chief Executive Sarah Jackson encourages employers not to view this issue as a zero-sum game:

"Today's decision is an important safeguard for the special employment protection needed for pregnant women and new mothers. We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law. Only women can experience childbirth, and maternity leave is to protect women's health and wellbeing - it cannot simply be equated with "childcare". We have long called for greater rights and pay for working fathers, including properly paid, standalone period of extended paternity leave for fathers; but these should complement, not undermine, the rights of working mothers. This is a not a zero-sum game."

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions