Can a failure to pay father full pay during shared parental leave amount to sex discrimination?

Last year we posted an article about a successful direct sex discrimination claim over shared parental pay. This decision has now been appealed.

There has been some controversy since shared parental leave (SPL) came into effect on 5 April 2015. More specifically what happens where a mother taking maternity leave during the same period receives full pay and the father does not and whether this does, in fact, amount to sex discrimination.

Shared parental leave enables both parents the opportunity to share leave between them for the purposes of caring for their baby after the compulsory leave period (2 weeks). This right also extends to same sex couples and couples who are adopting a baby.

Whilst many organisations will offer the statutory pay, it can be common for some employers to pay enhanced pay to mothers on maternity leave, but not enhanced pay during shared parental leave.

This issue was addressed by the Employment Appeal Tribunal in the case of Capita Customer Management Ltd v Ali.

The Claimant took two weeks’ paternity leave following the birth of his child. Due to his wife suffering from post-natal depression and being advised to return to work, the Claimant asked to take SPL in order to care for his child.

The Defendant had a range of policies concerning different types of family leave and pay. Their SPL policy stated that only statutory pay was offered to employees who took this leave. The Claimant was aware of female employees on maternity leave who were entitled to 14 weeks’ full pay and requested to be treated the same. The Claimant’s request was refused and he subsequently submitted a grievance alleging sex discrimination. This was followed by claims in the Employment Tribunal (ET).

The ET ruled the Claimant’s treatment constituted direct sex discrimination. After the period of compulsory maternity leave, the Claimant was able to compare his treatment with that of a hypothetical female colleague on maternity leave.

The ET rejected the argument put forward by the Defendant which was that the full 14 weeks’ maternity leave constituted special treatment in connection with childbirth, which is an exception to sex discrimination under the Equality Act 2010.

The decision was appealed by the Defendant and the EAT upheld the appeal on the following grounds:-

1. The ET had used the wrong comparator. The correct comparator was a female employee taking SPL in order to care for her child; and
2. The purposes of maternity leave and SPL are not the same. The right to maternity leave is based on the EU Pregnant Workers Directive and its primary purpose is to protect the health and wellbeing of the mother. Parental leave has the main purpose of caring for the child.

In summary, purposes of both types of leave are different. The EAT went on to state that even if the Claimant had been compared to a female employee on maternity leave, his claim would not have succeeded given that the Equality Act allows special treatment to be given to women in relation to pregnancy or childbirth, which includes enhanced pay for a woman during maternity leave.

Whilst the initial decision of the ET worried many employers who had chosen to provide enhanced pay for maternity leave but not SPL, the decision made by the EAT was welcomed.

In summary, a man on SPL is unable to compare himself to that a woman on maternity leave for the purposes of a sex discrimination claim, on the basis that the purposes of these types of leave are very different.

Areas of uncertainty remain. The Pregnant Workers’ Directive sets out the purpose of maternity leave with a minimum period of 14 weeks’ leave only. Does this purpose therefore remain for longer periods of maternity leave? We are yet to know an answer to this. For employers who pay enhanced maternity pay after the first 26 weeks of leave but do not offer the same enhancement for SPL, you may wish to review your policies.

For further advice on this or any employment law issue, please contact a member of the Chattertons Employment Team.