Court of Appeal rules that shared parental and maternity leaves are not comparable


The Court of Appeal has ruled that male employees taking shared parental leave cannot be compared to female staff on maternity leave, because new mothers are required to use their time off, in part, to recover from pregnancy and childbirth.

The Court of Appeal issued its judgement on Friday 24 May 2019, dismissing appeals in two sex discrimination cases: Ali v Capita Customer Management and The Chief Constable of Leicestershire Police v Anthony Hextall. Both cases questioned whether it is unlawful sex discrimination under the Equality Act 2010 for men to be paid less on shared parental leave than woman on maternity leave.

In the case of Ali, he sought to take shared parental leave at the same rate of pay as a female employee would have had if taking the organisation’s enhanced maternity leave.

Ali’s employment was transferred from Telefonica to Capita in 2013, therefore his parental leave entitlement was determined by Telefonica’s policies; this dictated that new mothers would receive full pay for the first 14 weeks of their maternity leave and then the lower statutory rate for the remainder. Shared parental leave and pay, on the other hand, mirrored statutory arrangements. Ali argued that this was unlawful direct discrimination on the basis of sex.

Hextall’s case regards unlawful indirect discrimination. Hextall is employed as a police constable at Leicestershire Police Force; its maternity policy entitles new mothers to receive 18 weeks of maternity leave at full pay, while the shared parental leave provision is the same as statutory arrangements.

Hextall alleged that the policy of only remunerating shared parental leave at the statutory level caused a particular disadvantage to men and was therefore unlawful indirect sex discrimination. The Chief Constable’s cross appeal asserted, however, that Hextall’s claim is one for equal terms.

The Court of Appeal dismissed both appeals. It identified that for Ali’s claim to succeed, he must have been treated less favourably than a female employee and the comparison is valid only if there is no material difference between him and the female employee. Ali cannot be compared to a woman on maternity leave, as under the Equality Act, maternity leave is provided to new mothers to assist in their physical and psychological recovery from pregnancy and childbirth. The court labelled a female employee on shared parental leave as the correct comparator, where there is no difference in pay.

That women are afforded special treatment and legal protections to recover after the birth is also why Hextall’s appeal was dismissed.

Beverley Sunderland, managing director at Crossland Employment Solicitors, said: “[While] the Court of Appeal decision may at first appear to be very unfair, the practical outcome of it is a positive one. If the court had held that statutory paternity pay should be enhanced for men then the likely outcome would have been [organisations] withdrawing enhanced maternity pay, so that they did not have to match it.

“The Court of Appeal has emphasised that maternity leave is not there for the care of the child, but the health and protection of the mother, to deal with the trauma of having a child. It is for this reason that maternity leave can start before the baby is born and why women are able to take maternity leave even in the sad circumstances of them losing the child. Therefore, maternity leave and shared parental leave cannot be compared.

“They have accepted the decision of the [Employment Appeal Tribunal (EAT)] that it cannot possibly be direct sex discrimination because men and women taking shared parental leave are treated equally.”

Khurram Shamsee, partner and head of employment team, London at DAC Beachcroft, added: “The business impact of this case is limited, as most employers have taken a ‘wait and see’ approach pending this decision. I am surprised that the courts allowed these cases to get this far as, in my view, the merits of the claims were questionable.

“Consider for a moment if the judgment had gone in their favour, and men were entitled to the same terms on shared parental pay as women are on maternity pay. It could have brought about the unintended consequence of employers making the business decision to shift away from offering enhanced maternity pay packages and scaling back towards the statutory minimum. Clearly such a consequence would be contrary to the intention of introducing shared parental leave, namely to allow for both parents to juggle their childcare and work commitments in a more flexible way.”