UK: Is Enhanced Maternity Pay Discriminatory On The Ground Of Sex?

Last Updated: 22 January 2019
Article by Wrigleys Solicitors

Many employers have more favourable provisions for pay during maternity leave than for those taking adoption leave or shared parental leave. Two employment tribunals considering similar claims from men who wanted to take shared parental leave came to different conclusions on whether enhanced maternity pay is discriminatory on the ground of sex. This year, the EAT resolved this issue.

The case of Ali v Capita Customer Management Ltd concerned Mr Ali who transferred under TUPE from Telefonica to Capita in 2013. Female employees who transferred were entitled during maternity leave to 14 weeks' on full pay and 25 weeks' statutory maternity pay. Male employees who transferred were entitled to 2 weeks' ordinary paternity leave on full pay followed by up to 26 weeks' additional paternity leave with no guaranteed pay. Mr Ali took his two weeks' paid paternity leave and explored the option of taking shared parental leave (SPL). His employer informed him that he could take SPL but would only be paid statutory shared parental pay (SSPP). Mr Ali brought claims of direct sex discrimination, indirect sex discrimination and victimisation in the Employment Tribunal.

Interestingly, the Tribunal found that he had been directly discriminated against. It decided that he could compare himself with a hypothetical female on maternity leave after the initial two week compulsory maternity leave. Under the Equality Act 2010 no account is to be taken of the special treatment afforded to women in connection with pregnancy or childbirth when deciding on a man's sex discrimination claim. But the Tribunal decided enhanced maternity pay after the initial two weeks was not in connection with pregnancy and childbirth. Rather it was in connection with caring for a new-born baby ("which role is not exclusive to women").

The EAT disagreed. It noted that the right to maternity leave and pay and the right to shared parental leave and pay spring from two different European directives which have different purposes. The Pregnant Workers Directive (the source of maternity leave and pay rights) has the primary purpose of protecting the health and wellbeing of the mother during pregnancy and period following birth. This directive requires member states to provide a minimum of 14 weeks' paid maternity leave. The Parental Leave Directive (the source of SPL rights) on the other hand is focused on care for the child and does not require member states to provide for pay during shared parental leave.

The EAT decided that the correct comparator for the direct discrimination claim was a woman on SPL and not a woman on maternity leave. A woman on SPL would have been offered pay at the same rate as Mr Ali and so he had not been treated less favourably

By contrast, in the case of Hextall v Chief Constable of Leicestershire Police, the employment tribunal found on similar facts that a father had not been directly discriminated against. Mr Hextall is a police officer whose female colleagues are entitled to enhanced maternity pay of 18 weeks' full pay. Male and female police officers are entitled as primary adopters to enhanced adoption pay at the same rate. Mr Hextall took three months' SPL and was paid only at the statutory rate. He brought direct and indirect sex discrimination claims in the Employment Tribunal.

The tribunal reasoned that he could not compare himself to a woman on maternity leave and that the correct comparator is a woman taking SPL (who would have been paid SSPP only). The tribunal decided that, even if Mr Hextall could compare himself with a woman on maternity leave, this would fall under the derogation for special treatment of a woman in connection with pregnancy and childbirth in the Equality Act.

The indirect discrimination claim was also dismissed by the Tribunal on the basis that Mr Hextall could not compare himself to a woman on maternity leave and the policy did not cause men a particular disadvantage because a woman on SPL would have been treated in the same way.

The EAT held that the tribunal was wrong on two counts on the indirect discrimination claim. First, the tribunal had confused the issue of deciding on a comparator for the purposes of the direct discrimination claim with the process of identifying a pool for comparison for the indirect discrimination claim. Secondly, it should not have found there was no disadvantage to men simply because the policy on SPL was the same for both men and women. The tribunal should have sought to identify any disadvantage to men inherent in the policy.

Possible future claims: direct discrimination

While employers will be relieved that these cases indicate that it will not be directly discriminatory to pay enhancements to women on maternity leave and not to those on SPL, they do leave open the possibility of future sex discrimination claims where enhanced maternity pay is paid but enhanced shared parental pay is not. In Ali the EAT commented that there may come a point during maternity leave where the purpose changes from the health and well-being of the mother to the care of the child. The EAT commented that this might be at the end of ordinary maternity leave (26 weeks). However, it could be argued that the change of focus could come at 14 weeks as per the protected period in the Pregnant Workers Directive. Fathers who can compare themselves with a woman on maternity leave in this later period could potentially bring direct discrimination claims.

Possible future claims: indirect discrimination

A tribunal may find that men are disadvantaged by a policy of not paying enhanced SSPP but paying enhanced maternity pay. A man might successfully argue that he is disadvantaged by not having the choice between enhanced maternity pay and SSPP (a choice which is open to women who give birth). However, employers may be able to justify the indirect discrimination as a proportionate means of achieving a legitimate aim. The high costs of enhancing pay for those on SPL will not be sufficient justification on their own. Legitimate aims may include the promotion and retention of women in a male-dominated workforce. The employer would also have to show that the policy was proportionate in that it was reasonably necessary and there were no less discriminatory means of achieving the legitimate aim.

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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