UK: Father Who Was Not Given Enhanced SPP To Match Enhanced Maternity Pay Was Not Discriminated Against

Last Updated: 19 April 2018
Article by Charles Urquhart and Sophie Jackson

Most Read Contributor in UK, November 2018

Shared parental leave allows parents - both opposite and same sex couples, as well as those adopting a child - to share leave between them to care for their baby.

Many employers pay mothers on maternity leave enhanced maternity pay over and above statutory maternity pay, but it is less common for employers to enhance pay for those on shared parental leave. This has led to questions and uncertainty about whether this amounts to discrimination, as was raised by Mr Ali in this case.

Mr Ali was a new father. His wife had been advised to return to work to help with her recovery from post-natal depression, and Mr Ali wanted to take time off work to care for their baby. He took two weeks' paternity leave on full pay, and was told that he could also take shared parental leave, but that he would only be paid at the statutory rate while he was on shared parental leave - currently £145.18 per week.

Mothers employed by the same company, on the other hand, could take 14 weeks' enhanced maternity pay followed by 25 weeks' statutory maternity pay, although a woman on shared parental leave would only receive the statutory rate. Mr Ali brought a claim for direct sex discrimination against his employer, Capita.

Last year, the Employment Tribunal agreed with Mr Ali that it was direct sex discrimination for Capita to only pay him two weeks' leave at full pay and then at the statutory parental leave rate, when they would have paid a woman on maternity leave 14 weeks' full pay. The employer, Capita, appealed against this decision.

The Employment Appeal Tribunal (EAT) overturned the Employment Tribunal's ruling, deciding that Mr Ali had not been discriminated against.

The reason they reached this decision is that they said the purpose of shared parental leave is different to maternity leave. The main purpose of maternity leave is the health and wellbeing of the mother, before and after birth. By contrast, the main purpose of shared parental leave is to care for the child.

This means that a father taking shared parental leave cannot compare himself to a mother taking maternity leave in order to claim the same pay as her. Instead, Mr Ali had to compare himself with a woman on shared parental leave, who would have been given shared parental leave and pay on the same terms as he was.

In any event, the EAT said the Tribunal should have found that this more favourable treatment of women on maternity leave in terms of enhanced pay was allowed under an exception in the legislation which means women can be given special treatment where it is connected to pregnancy or childbirth.

Practical points

Last year's Tribunal decision in this case, gave many employers who provide enhanced pay for maternity leave but not SPL cause for concern, and no doubt the EAT's decision will be welcomed by those employers.

But it still leaves some lingering uncertainty. For example, does there come a point where the purpose of maternity leave stops being about the mother's health and wellbeing and starts being about caring for the child (just like it is for SPL), at which point can a man on SPL compare himself to a woman on maternity leave in order to claim the same pay as her?

Interestingly, the work-life balance organisation Working Families which intervened in this case, argued just that, saying that in their view after 26 weeks "the purpose of maternity leave may change from the biological recovery from childbirth and special bonding between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave." The EAT agreed that this "may well" be the case, although it wasn't a point that was decided one way or the other in this case. So we will have to watch this space to see what the answer is.

Another area of uncertainty left by this case is whether Mr Ali would have won his claim if he had brought an indirect sex discrimination claim, instead of a direct discrimination claim?

A rule or practice of only paying enhanced pay to women on maternity leave and not those on SPL could amount to indirect sex discrimination. This is because although it will disadvantage both men and women (as they can both take SPL), it may potentially disadvantage men in particular, because they can't take maternity leave. The difference is that, an employer faced with an indirect discrimination claim of this sort, may avoid being found to have discriminated against men if they can justify their pay policy - as the employer was able to do in a case involving a company who paid enhanced pay to women on maternity leave but only statutory pay to men on additional paternity leave (as was available to men at the time).

We are also waiting for the outcome of another case being looked at by the EAT on similar issues to those raised in Mr Ali's case. In that case, the Employment Tribunal decided, as the EAT has done in this case, that the employee had not been discriminated against when he was paid less than women on maternity leave. We will have to wait and see whether that case provides any more clarity for employers.

Capita Consumer Management Limited v (1) Mr M Ali (2) Working Families (Intervenor)

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.

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