The recent Court of Appeal (“CA”) case of Ali v Capita Customer Management Ltd (“Capita”); Chief Constable of Leicestershire Police v Hextall [2019], confirmed that it was not discriminatory to pay men on shared parental leave (“SPL”) less than a woman on an enhanced maternity pay scheme.

Back in April last year, my colleague, Emma James submitted a blog which discussed the case of Capita above. The blog also provides a useful summary of SPL. A link to this blog is available below: http://insights.brabners.com/post/102eu7d/do-employers-running-enhanced-maternity-pay-schemes-have-to-match-this-benefit-fo

Background

For a short recap, Mr Ali, an employee at Capita brought claims of direct and indirect discrimination on the grounds of sex against his employer on the basis that he was not paid the same as female employees on maternity leave. At capita, female employees on maternity leave were entitled to enhanced maternity pay for the first 14 weeks of their maternity leave. The Employment Tribunal (“ET”) initially found that Mr Ali had a claim of direct discrimination on the ground of sex but on appeal, the Employment Appeal Tribunal (“EAT”) found that the ET were incorrect. The EAT said that Mr Ali’s comparator should not be a woman on maternity leave but a woman on SPL.

Mr Hextall similarly raised claims of direct and indirect discrimination on the grounds of sex which subsequently failed. Mr Hextall took 14 weeks of SPL and was paid a statutory rate but his employer, Leicestershire Police, had a policy which gave women on maternity leave 18 weeks of full pay. On appeal (Mr Hextall did not appeal the direct discrimination claim), the EAT found that the ET had made a number of errors which included, that the ET had failed to identify the disadvantage to which men were put.

Both Mr Ali and Mr Hextall took their cases to the CA.

The Appeals

In the case of Mr Ali, the CA found that he could not compare himself to woman on maternity leave because statutory maternity leave (after the two-week period) was not intended for childcare, instead it was:

  • To prepare for and cope with the later stages of pregnancy.
  • To recuperate from the pregnancy.
  • To recuperate from the effects of childbirth.
  • To develop the special relationship between the mother and the newborn child.
  • To breastfeed the newborn child.
  • To care for the newborn child.

The CA found that there were key differences between SPL and statutory maternity leave. Statutory maternity leave was in part compulsory, could begin prior to birth and was immediate, even if there was no child to look after. On the other hand, SPL was optional, only available after birth subject to a partner’s agreement and there had to be a child to look after. Ultimately, maternity leave took into account factors exclusive to pregnancy and child birth which was not shared by the partner.

The CA’s judgment supported section 13(6)(b) of the Equality Act 2010 (EqA) which deals with direct discrimination, it states:

(b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

The CA did not feel that s.13(6)(b) EqA needed to be interpreted in a strict or narrow way, for the panel, this provision did not serve as an escape from the general principle of non-discrimination but instead, it preserved and promoted protection required by EU legislation for a category of female workers in the Pregnant Workers Directive.

In the case of Mr Hextall, the CA found that the ET and EAT had characterised his claim wrong. For the CA, his claim was an equal terms claim which is set out at s.66 EqA 2010. The clause is implied into all employees' contracts of employment and provides that:

  • If a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified so as not to be less favourable;
  • If A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified so as to include such a term.

However, the CA found that even if the ET or EAT had correctly characterised the claim, it would have failed as paragraph 2 of Schedule 7 EqA 2010 provides that a man cannot make a claim based on more favourable terms enjoyed by a woman as a result of pregnancy or childbirth.

What does this mean for employers?

Well, in short, its good news for employers with enhanced maternity pay policies.

However, the picture is much bleaker for fathers considering whether to take up SPL. Uptake of SPL is already low due to the poor statutory rate of pay.

In April this year, the European Parliament had its first reading of the European Commission’s proposal for a Directive on work-life balance for parents and carers. The objectives of the proposal are to encourage flexible working arrangements and family related leave by men. If the prospective Directive is successful, who knows what the position of our government will be on this issue considering the on-going brexit turmoil we are experiencing!

Whilst we wait to see whether SPL will be overhauled, it is understood that Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court.