On 11th April 2018, the Employment Appeal Tribunal (“EAT”) held that failure to provide full pay to a man taking shared parental leave, where women are given enhanced maternity pay, did not amount to direct sex discrimination. However on 1st May 2018, in a case of similar circumstances, the EAT stated that enhancing maternity pay but not shared parental leave pay may potentially amount to indirect discrimination. This article looks at the facts of both cases, the EAT’s decisions and where this leaves employers.
Ali v Capita Customer Services Limited
Mr Ali worked for Capita Customer Management Limited (“Capita”) after being transferred under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) from Telefonica in July 2013. Under the terms of Capita’s maternity, paternity and shared parental leave policies, women who had transferred from Telefonica were entitled to 14 weeks maternity leave during which time they would receive their full salary. Men were entitled to two weeks’ paid paternity leave on full pay.
Mr Ali’s wife gave birth to their daughter prematurely in April 2016 and Mr Ali took two weeks paternity leave. Mr Ali’s wife was diagnosed by her doctor with postnatal depression and was advised to return to work two weeks after the birth to regain her health.
Mr Ali enquired with Capita about taking shared parental leave to care for his child and was advised that he could do so but would only receive statutory pay. Mr Ali asserted that with the exception of the first 2 weeks of compulsory maternity leave, men and women were equally well placed to care for the child. Accordingly, for Capita not to pay a man taking shared parental leave 12 weeks’ full pay amounted to direct sex discrimination.
The Employment Tribunal found in favour of Mr Ali’s direct sex discrimination claim, on the basis that the “caring role he wanted to perform was not a role exclusive to the mother”. However, the EAT found that the Employment Tribunal had erroneously interpreted that Mr Ali’s circumstances “were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth, as both had leave to care for their child”. The EAT affirmed that the purpose of maternity pay is to acknowledge the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.
The EAT stated that the appropriate comparator for Mr Ali was a woman on shared parental leave who had not personally given birth. Such a female comparator would receive the same leave and pay as was given by the employer to Mr Ali. As such, there was no difference in treatment between men and women and the claim could not succeed.
Hextall v Chief Constable of Leicestershire Police
Like Mr Ali, Mr Hextall, a serving police officer, also took shared parental leave for 14 weeks. He received statutory pay, however, if he had been a female police officer on maternity leave he would have been received full pay for this period. Mr Hextall claimed that non-payment of full pay amounted to both direct and indirect sex discrimination.
Unlike Mr Ali’s claim, at Employment Tribunal level, Mr Hextall’s claims of both direct and indirect discrimination were dismissed. The tribunal rejected the contention that women on maternity leave were valid comparators for men on shared parental leave because there is a material difference and applied this logic in rejecting the indirect discrimination claim too. The tribunal maintained that the correct comparator was a female same sex partner taking shared parental leave after her partner or wife had given birth.
Indirect sex discrimination occurs when an employer has a provision, criterion, or practice (“PCP”) which applies to everyone but results in one sex being put at a disadvantage and, in Mr Hextall’s case, the tribunal held that men were not put at a disadvantage when compared to women as both were paid statutory pay on shared parental leave. Unlike direct discrimination, an employer can justify indirect discrimination. For example, in Shuter v Ford Motor Company a tribunal accepted that the employer’s policy of paying full pay to women on maternity leave for recruitment and retention purposes was a valid justification.
Mr Hextall successfully appealed the decision regarding indirect discrimination to the EAT. The EAT e determined that the tribunal was wrong in its analysis of the claim but due to a lack of sufficient facts before them have remitted the claim to a fresh tribunal to reconsider. The basis for reconsideration is that an employer enhancing maternity pay but not shared parental leave is potentially applying a practice that puts men at a comparative disadvantage. Whilst mothers have the option to stay on maternity leave with enhanced pay or to take shared parental leave at the statutory rate, men are not afforded this option. Therefore, the tribunal will have to reconsider the issue and determine whether there is a valid justification.
Implications for Employers?
Unfortunately, we do not yet have a definitive answer as to whether an employer paying enhanced maternity pay and not enhanced shared parental leave pay amounts to indirect discrimination. Employers can however take some comfort in the fact that it may be possible to objectively justify difference in pay and where there is a discrepancy between the pay offered to employees taking either maternity or shared parental leave, employers should review their reason for that difference. This will require an employer to identify:
- The legitimate aim in paying enhanced maternity pay, but not enhanced pay for shared parental leave; and
- Whether the difference in pay is proportionate to achieve that aim.
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