Are our shared parental pay practices discriminatory?

Since the introduction of shared parental leave and pay in 2015, there has been much discussion about whether companies with enhanced maternity packages are legally obliged to match those benefits for anyone taking shared parental leave. After all, if female employees are offered enhanced packages to be off work caring for a child, then surely the same packages should be offered to male employees?

A recent case in the Employment Appeal Tribunal, Capita Customer Management Ltd v Ali and anor, has provided us with some guidance in relation to this issue.

Mr A was denied the same 14 weeks’ basic pay whilst on shared parental leave that was offered by his employer to female employees on maternity leave. In March 2017, Mr A alleged that his employer had discriminated against him on the grounds of his sex by treating him less favourably than a hypothetical female employee taking leave to care for her child after the two-week compulsory maternity leave period.

The EAT upheld the appeal, finding that Mr A had adopted the wrong comparator and, in any event, the Tribunal should have found that the more favourable treatment given to women at the start of their maternity leave was lawful because of the exception provided for in the Equality Act 2010 – “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”.

Importantly, in reaching its decision, the EAT looked back at the primary legislation which introduced the concepts of maternity leave and shared parental leave. It noted that the primary purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave and is required to continue for at least 14 weeks. In contrast, the primary purpose of shared parental leave is to care for the child – with no mention of pay. The EAT held that the father’s situation was therefore not comparable to a woman on maternity leave (at least for the first 14 weeks of leave).

Whilst this judgment provides us with some clarity as to direct discrimination claims for the first 14 weeks of maternity leave, there is certainly an argument to be made that, after 14 weeks, the purpose of maternity leave changes from the protection of the health and wellbeing of the mother, to the continued care of the child. So, if female employees are still being paid enhanced maternity packages at that stage of their leave, there is perhaps scope for a direct discrimination claim on those facts to be successful in the future.