Court of Appeal – No Discrimination Where Men On Shared Parental Leave paid Less Than Women On Maternity Leave

June 4, 2019

BACKGROUND

The system of shared parental leave (SPL) was introduced to allow parents to share leave between them in order to care for a new baby. The take up of SPL has been very low, possibly because many employers offer enhanced maternity pay but don’t offer a similar enhancement to shared parental pay.

The issue considered in the cases of Hextal –v- Chief Constable of Leicestershire Police and Capita Customer Management Limited –v- Ali was whether it is discriminatory for an employer not to pay a man who takes SPL at the same rate as a women on maternity leave.

DECISION

The Court of Appeal concluded that it is not direct discrimination, indirect discrimination or breach of equal pay rights to provide enhanced pay for maternity leave and only statutory pay for shared parental leave.

The Court decided that it is not direct sex discrimination to pay statutory shared parental pay only as a man on SPL cannot compare himself to a mother on maternity leave and the correct comparator for a man on SPL is a woman on SPL. The reason for this is that the reason for the leave differs. Maternity leave is not just for the purpose of caring for a newborn child but also to allow the birth mother to recover from pregnancy.

The Court held that a claim of indirect discrimination would also have failed because men and women can both take SPL and it would not be correct to include women on maternity leave in the pool for comparison as they are in a different situation from men and women on SPL. The Court also went on to hold that indirect discrimination could be justified anyway as special treatment for women in relation to pregnancy in childbirth is allowed by law.

Finally, the Court held that the claim for equal pay must also fail because the sex equality clause does not apply to contractual terms giving women special treatment in connection with pregnancy or childbirth.

COMMENT

Many employers will be relieved as that the judgment makes clear that it is lawful to enhance maternity pay but to pay statutory pay for SPL.

Some commentators have questioned the Court’s view that maternity leave is about the protection of the mother after childbirth, especially when a women can take up to 52 weeks maternity leave and many would argue that a substantial part of that leave is about the facilitation of childcare.

Notwithstanding this decision, it is encouraging to see large multinationals like Diageo announce that it will offer 26 weeks paid leave to new fathers in the Republic of Ireland with the Company commenting that it hoped the policy would allow employees “focus on the joy of raising a young family, while continuing to thrive at work, ensuring that both men and women can have time with their new baby.”

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Law Team at Cleaver Fulton Rankin for further advice or information.

Aisling Byrne, Associate Director, Employment Law Team, Cleaver Fulton Rankin Solicitors.