News item

Court of Appeal: not discriminatory to offer enhanced maternity pay but only statutory shared parental pay

29th May 2019

Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall

We have previously reported on the outcome of two Employment Appeal Tribunal hearings dealing with the question of whether it is unlawful discrimination to provide women on maternity leave with enhanced maternity pay whilst only providing employees on shared parental leave with statutory pay.

The Court of Appeal, hearing the two cases together earlier this month, has now upheld the previous ruling that there is no requirement to provide equivalent benefits to fathers or partners taking shared parental leave. The entire period of maternity leave following childbirth, and not just the initial two weeks of compulsory maternity leave, is – the court held – for more than just facilitating childcare. The predominant purpose of such leave is for “other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner.” Consequently, there is a material difference between a man taking shared parental leave and a woman taking maternity leave and therefore the proper comparator for a man taking shared parental leave is a female worker on shared parental leave.

An equal pay claim would also fail because provision is made in the Equality Act 2010 for special treatment to be given to a woman in connection with pregnancy or childbirth.

This ruling will come as a relief to many employers, including in the education sector, who have been concerned that they may be forced to equalise provision between occupational maternity pay and shared parental pay. Such an outcome would likely have resulted in a reduction in the level of maternity pay to avoid an overall increase in costs.