EAT rules shared parental leave pay and maternity pay are not comparable


The Employment Appeal Tribunal (EAT) has ruled that the rate of pay for a male employee taking shared parental leave cannot be compared to a female employee on maternity leave pay because the purpose of the leave arrangement is different.

The case, Mr M Ali v Capita Customer Management, was taken to the EAT after an Employment Tribunal decision, published in June 2017, found that male employee Madasar Ali was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay.

However, EAT allowed this decision to be appealed, ruling that the purpose of maternity leave and pay is for the health and wellbeing of a woman in pregnancy, confinement and recent childbirth, while shared parental leave and pay is designed to aid parents with childcare. The EAT ruled that the correct comparator in this case, therefore, would be a female employee on shared parental leave and pay rather than a female employee on maternity leave and pay, and since shared parental leave is delivered on equal terms to both men and women, this would mean Ali was not subjected to sex discrimination.

This aligns with the European Union’s (EU) Pregnant Workers Directive, which requires employers to provide pregnant women and those who have given birth a minimum of 14 weeks’ maternity leave with adequate pay in order to promote the health and wellbeing of the mother. This is compared to clause two of the framework agreement on parental leave (revised) annexed to the Parental Leave Directive, which identifies the purpose of parental leave is for parents or adoptive parents to care for their child. There is no EU law requiring employers to provide paid parental leave although domestic law caters for this.

Ali joined Capita Customer Management via a Transfer of Undertaking (Protection of Employment (Tupe)) transfer from Telefonica in 2013. As a male employee, Ali was entitled to two weeks of paid leave following the birth of his child. A female employee who had transferred from Telefonica would have been entitled to up to 14 weeks of leave at full pay following the birth of a child.

Ali took two weeks of paid paternity leave following the premature birth of his daughter in February 2016, followed by a week’s paid annual leave. Ali wished to take further leave to care for his daughter after his wife was diagnosed with post-natal depression and received medical advice to delay returning to work to aid her recovery.

Ali was informed that he would only be eligible for shared parental leave under the Capita policy, entitling him to statutory pay. Ali claimed that this would leave him at a financial disadvantage and he argued that he was therefore deterred from taking further paternity leave. He contended that he should receive the same paid leave entitlement as a female colleague who had transferred from Telefonica and the fact that he was not eligible for the same length of paid leave amounted to direct discrimination on the grounds of sex.

The complaint focused on the 12-weeks following the two-week period immediately after the birth of the child. Ali accepted that in the two weeks after the birth, he received his paternity leave at full pay, while his wife received compulsory maternity leave to help her physically recover.

The Honourable Justice Slade, who ruled over the EAT hearing, stated in the published court documents: “The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay, which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the claimant father were comparable within the meaning of the Equality Act 2010 to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay.

“Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010.”

Sarah Jackson, chief executive officer at Working Families, said: “[This] decision is an important safeguard for the special employment protection needed for pregnant women and new mothers. We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law. Only women can experience childbirth, and maternity leave is to protect women’s health and wellbeing; it cannot simply be equated with ‘childcare’.

“We have long called for greater rights and pay for working fathers, including properly paid, standalone period of extended paternity leave for fathers; but these should complement, not undermine, the rights of working mothers. This is a not a zero-sum game.

“We encourage all our employer members to match shared parental pay to enhanced maternity pay, because well-paid leave is vital if we are to see more fathers take up their rights, and ultimately to improve equality at work and at home.”

Lauren Pullen-Stanley, senior associate in the employment team at Norton Rose Fulbright, added: “Employers which made the decision to pay enhanced maternity pay to employees on maternity leave, but only statutory shared parental pay to employees on shared parental leave, will be very pleased to hear of the Employment Appeal Tribunal’s decision that this does not constitute direct sex discrimination, a point that was previously subject to conflicting case law. For now, at least, employers can breathe a sigh of relief on this front.”

Michelle Morgan, employment solicitor and senior associate at Gardner Leader, said: “Capita Customer Management appealed to the Employment Appeal Tribunal which has handed down its  decision. Businesses will be pleased to hear that failure to enhance shared parental pay in line with enhanced maternity pay is not discriminatory on the grounds of sex.

“The reasoning behind this decision is that the 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. The EAT held that the father’s situation was not comparable to a woman on maternity leave, a decision that will be seen as a welcome relief to employers and women who are currently seeing the ramifications of laws such as the gender pay gap reporting.”