In Ali v Capita and Hextall v Chief Constable of Leicestershire Police (joined cases) the Court of Appeal has ruled that it is not discriminatory to enhance maternity pay, while only offering statutory shared parental pay for partners. This applies whether the claim is for direct or indirect discrimination, or equal pay. Read more…
Shared Parental leave is paid at the same flat rate as Statutory Maternity Pay. In the first 6 weeks, you get 90% of your average weekly earnings (AWE) before tax.
Statutory maternity pay and statutory sick pay rates will not rise in 2016. The Government has proposed no annual increase in various statutory rates, including maternity pay, paternity pay, shared parental pay, adoption pay and sick pay.
There is no statutory right to enhanced contractual pay to partners on SPL where an employer pays enhanced maternity pay. It is completely up to your employer whether or not to enhance contractual pay to employees on shared parental leave, where they already pay enhanced maternity pay.
If you end your maternity leave and opt to take shared parental leave, you could be giving up your entitlement to enhanced pay (if this is in your contract).
An employee could argue that it is sex discrimination for an employer to enhance pay to employees on maternity leave, but not to those on shared parental leave. Your employer may be able to defend a sex discrimination claim on the ground that a male employee on shared parental leave is treated no less favourably than a female employee on shared parental leave. A policy of enhancing only maternity pay might be allowed under provisions allowing “special treatment afforded to a woman in connection with pregnancy or childbirth” under Section 13(6)(b) Equality Act 2010 says that ” 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”
In Shuter v Ford Motor Company Ltd.  the East London employment tribunal considered whether an employer’s payment of statutory paternity pay during additional paternity leave, when it paid enhanced maternity pay, was direct or indirect sex discrimination. The tribunal said Ford did not discriminate by paying the statutory rate of additional paternity pay to a male employee on additional paternity leave (APL) when a female employee on maternity leave would have been entitled to her full basic pay. The tribunal said there was no direct sex discrimination because a female employee on additional paternity leave would have been treated in the same way as Mr Shuter, and the reason for the difference in treatment was because of the type of leave and not because of sex. The employment tribunal also concluded that the exception in section 13(6)(b) of the Equality Act 2010 would have applied to any direct sex discrimination since it was satisfied that the treatment complained of was connected to pregnancy and childbirth and was proportionate.
On indirect discrimination, the employment tribunal accepted Fords argument that the policy of enhancing maternity pay but not APL was addressed to a legitimate aim, namely to recruit and retain women in a male-dominated workforce.
The Court of Appeal heard these two cases together and ultimately decided that it is not discriminatory to enhance maternity pay, while only offering statutory shared parental pay for partners. This applies whether the claim is for direct or indirect discrimination, or equal pay.
Leicester Police and Capita have similar policies on maternity pay and shared parental leave. Capita pays women maternity pay of up to 39 weeks, with the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking shared parental leave receive statutory shared parental pay only. At Leicester Police, women are entitled to 18 weeks’ full pay followed by 39 weeks of statutory maternity pay. Shared parental leave is paid at statutory rates.
Mr Ali’s said that Capita had directly discriminated against him by paying him less than a woman. He said that only the first two weeks of compulsory maternity leave are necessary to protect a mother following childbirth. Remaining on maternity leave after that, rather than switching to shared parental leave, is a “choice” about providing childcare. Mr Ali said that there shouldn’t be a financial incentive for the birth mother to stay at home and that the mother and partner should both have same benefits when taking leave to care for the child.
The Court disagreed with him, saying that his arguments amounted to an “attack against the whole statutory scheme” under which special treatment is given to women on maternity leave and that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare”. It helps women prepare and cope with the later stages of pregnancy, recuperate from giving birth, bond with their child, breastfeed and care for the new arrival. Shared parental leave on the other hand, is mainly about childcare.
The exception to a comparison between employees for “special treatment afforded to a woman in connection with pregnancy or childbirth” is wide enough to include enhanced maternity pay. The minimum of 14 weeks’ leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks.
The Court concluded that men on parental leave and women on maternity leave are not in comparable positions for the purposes of Equality Act 2010. There was no direct sex discrimination.
Mr Hextall’s argument was that Leicester Police’s policy of paying women on maternity leave more than those on shared parental leave indirectly discriminated against men. Leicestershire Police said that his argument was actually about equal pay and not indirect discrimination. The Equality Act 2010 incorporates a sex equality clause in all contracts of employment where an individual does work that is equal to the work done by a comparator of the opposite sex. Mr Hextall said that the sex equality clause should modify his terms of work by including a corresponding term giving him leave and pay at the same rates as a female police officer taking maternity leave.
The Court agreed with Leicester Police that a contractual difference in shared parental leave pay between men and enhanced maternity pay for women is about equal pay and not indirect discrimination. In any event, Mr Hextall could not have been successful with that type of claim because the law allows employers to make exceptions for women who are pregnant, have recently given birth or who are breastfeeding. For the same reasons as direct discrimination, that exception is wide enough to include enhanced maternity pay.
There is a specific exclusion in Schedule 7, Paragraph 2 Equality Act 2010 for indirect discrimination claims where they would be equal pay claims except for a specific exception. A claim can only be about equal pay or direct/indirect discrimination. It cannot be both. For this reason, Mr Hextall could not pursue an indirect discrimination claim. Even if he could, the Court said that his indirect discrimination claim was invalid for the same reasons as Mr Ali’s. Shared parental leave cannot be compared with maternity leave.
In short, Parliament has made a statutory exception which gives special treatment to a woman during pregnancy and childbirth. That special treatment is only available to the birth mother.
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