The Supreme Court has refused leave to appeal in two joint cases, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, concerning claims of discrimination in relation to shared parental leave allowances.
In May 2019, the Court of Appeal published the decision that failure to pay enhanced shared parental pay to match enhanced maternity pay was not a matter of sex discrimination. The Supreme Court has now refused permission to appeal this decision, meaning that it will remain binding.
In both cases, the employer had directly enhanced the pay of women during maternity leave, without doing the same for shared parental leave.
Capita provides female employees with up to 39 weeks of maternity pay, with the first 14 weeks at full pay, followed by 25 weeks of statutory maternity pay. Leicestershire Police Force provides 18 weeks of maternity leave at full pay. It also offers a shared parental leave scheme mirroring the statutory shared parental leave requirements.
Mr Ali brought a claim for unlawful direct sex discrimination. He accepted that there was no direct correlation between himself and a mother during the two weeks of compulsory maternity leave, set aside for the mother to recover after giving birth. However, his complaint was in respect of the following 12 weeks of leave at full pay received only by female employees.
Mr Hextall brought a similar claim to the Supreme court of appeal, alleging that his employer’s policy caused a particular disadvantage to men and was unlawful discrimination.
In 2019, the Court of Appeal ruled: there is no direct discrimination as a man on shared parental leave for childcare reasons is not in comparable circumstances to a birth mother on leave for health and safety purposes; men and women in the comparison pool were not placed at any particular disadvantage; the sex equality clause does not apply where there is special treatment relating to maternity. These decisions were upheld by the Supreme Court in February 2020.
Louise Keenan, associate at Clarks Legal, said: “This will be welcome news for employers as it means they do not need to amend their current policies to enhance shared parental leave to match that of maternity leave.”