The Court of Appeal has ruled that employers can enhance maternity pay, while only offering statutory shared parental pay for partners.
In two cases that were heard together at the beginning of the month, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, the court said there was “nothing unusual” about their policies and unanimously rejected both claims.
At Capita, women were entitled to maternity pay of up to 39 weeks, with the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking shared parental leave received statutory shared parental pay only.
Enhancing parental leave
Leicestershire Police operated a similar policy – women were entitled to 18 weeks’ full pay followed by 39 weeks of statutory maternity pay while those on shared parental leave were only paid at statutory rates.
Despite the cases’ similarities their arguments differed. Ali argued that paying him less than a woman amounted to direct discrimination, while Hextall argued that the policy of paying women on maternity leave more than those on shared parental leave indirectly discriminated against men.
Ali v Capita
Ali argued that only the first two weeks of compulsory maternity leave are necessary to protect a mother following childbirth and that remaining on maternity leave after that, rather than switching to shared parental leave, is a “choice” about providing childcare.
He believed there shouldn’t be a financial incentive for the birth mother to stay at home and that the mother and father should both have same benefits when taking leave to care for the child.
But the judges said these arguments amounted to an “attack against the whole statutory scheme” under which special treatment is given to women on maternity leave and that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare”.
In particular, it helps women prepare and cope with the later stages of pregnancy, recuperate from giving birth, bond with their child, breastfeed and care for their new born. By contrast, shared parental leave was predominately about childcare.
Hextall v Leicestershire Police
In the other case, Leicestershire Police argued that Hextall’s complaint was, in fact, about equal pay. The Equality Act incorporates a sex equality clause in all contracts of employment where an individual does work that is equal to the work done by a comparator of the opposite sex. Hextall argued that the sex equality clause should modify his terms of work by including a corresponding term giving him leave and pay at the same rates as a police officer taking maternity leave.
Parliament has made a statutory exception which gives special treatment to a woman in connection with pregnancy or childbirth. That special treatment is, by definition, not available to anyone other than a birth mother” – Jenny Arrowsmith, partner, Irwin Mitchell
The court agreed that this issue was about inequality of terms rather than one of indirect discrimination but said Hextall could not have been successful with that type of claim anyway, because the law allows employers to make exceptions for women who are pregnant, have recently given birth or who are breastfeeding.
The court said that a claim can only be about equal terms or direct/indirect discrimination claim – it can’t be both. Hextall could not therefore pursue an indirect discrimination claim. Even if he could, the court did not find that the indirect discrimination claim was valid for much the same reasons as Mr Ali’s claim failed – shared parental leave is not comparable with maternity leave.
Jenny Arrowsmith, employment partner at Irwin Mitchell, acting for Capita, said: “The court made it clear that that there is no room for a direct, indirect or equal pay claim arising from paying women on maternity leave more than parents on shared parental leave. My client was correct to resist this claim. Its policies were similar to those of many other employers.
“Parliament has made a statutory exception which gives special treatment to a woman in connection with pregnancy or childbirth. That special treatment is, by definition, not available to anyone other than a birth mother, which means the partners of birth mothers are not discriminated against if they do not receive enhanced benefits for taking leave to care for their newborn.
Employers can rest assured for now that legally their shared parental pay arrangements do not have to be enhanced as a failure to do so will probably not be discriminatory. However, in the modern workplace, this issue isn’t going to go away as families demand that their employers cater for the more flexible ways in which they choose or are obliged to divide or share their childcare” – Nicola Ihnatowicz, partner, Trowers & Hamlins
“This decision will be welcomed by employers that pay higher rates to women on maternity leave than to parents on different types of family leave. It’s also good news for women. Had the decision gone the other way, employers may have reduced their maternity pay to statutory rates because they could not afford to equalise pay rates to those taking shared parental leave – something Working Parents acknowledged in their submissions.”
The court did not say when the purpose of maternity leave ‘transitioned’ into one that focused on caring for the child rather than the mother’s health – but indicated this would be at least 14 weeks or longer if the woman was breastfeeding for the recommended six-month period. Work-life balance organisation, Working Families, intervened in the case and argued that 26 weeks might be appropriate.
While the court’s judgment is clear, an increasing number of employers are equalising the parental pay their staff receive. Diversity experts argue that by paying men and women the same when they take leave to look after their children, it can help women share the “motherhood penalty” with fathers.
Nicola Ihnatowicz, partner at Trowers & Hamlins said: “Employers can rest assured for now that, legally, their shared parental pay arrangements do not have to be enhanced as a failure to do so will probably not be discriminatory. However, in the modern workplace, this issue isn’t going to go away as families demand that their employers cater for the more flexible ways in which they choose or are obliged to divide or share their childcare.”
Working Families chief executive Jane van Zyl said: “Working Families’ intervention in these cases reflects our concern that a ruling of sex discrimination would have undermined the essential protection afforded to women on maternity leave, and could have resulted in employers reducing maternity pay.
“The distinct disadvantage that women face in the workplace having experienced pregnancy and childbirth must continue to be recognised in law. Because maternity leave is designed to protect women’s health and wellbeing, it cannot simply be equated with ‘childcare’.
“Well-paid leave is vital if we are to improve equality at work and at home, and see more fathers take up their rights. Working Families has long called for employers that can afford to do so to go beyond the minimum pay for shared parental leave, to encourage fathers in particular to use it.
“In addition, we continue to advocate for a properly paid, standalone period of extended paternity leave for fathers. These steps would allow fathers be more involved in their children’s lives and help challenge gendered ideas around who works and who cares. Measures like these should complement, not threaten, the rights of working mothers.”
This article was first published on 24 May 2019 and updated on 28 May 2019.