UK Court of Appeal finds different pay for maternity and parental leave not unlawful

The UK Court of Appeal has found that there was no direct nor indirect discrimination in offering different rates of pay for maternal leave and shared parental leave. The decision of the Court affirms that the purpose of maternity leave is to protect the mother’s health and recognises the special relationship between mother and baby.

In 2018 the Employment Appeal Tribunal (EAT) found in Capita Customer Management Limited v Ali that there was no direct discrimination against a father who wished to take shared parental leave. Mr Ali argued that he was directly discriminated against as he could not avail of the higher rate of pay given to employees on maternity leave. The EAT stated that Mr Ali’s situation was not comparable to a woman on maternity leave as maternity leave has a different purpose to parental leave. However, Mr Ali could compare himself with another employee on shared parental leave. The employer provided the same rate of pay for both men and women on shared parental leave and it was concluded that there was no direct discrimination.

In a separate case in 2018 the EAT ruled in the matter of Hextall v Chief Constable of Leicestershire in relation to company policy of enhanced pay for maternity leave, but not for shared parental leave.It was held that the Employment Tribunal had incorrectly found that there was no indirect discrimination.  The EAT held that women on maternity leave were not valid comparators in the context of direct discrimination, and that the Employment Tribunal had erred in using this as the reason for determining that there was no indirect discrimination. For indirect discrimination, the tribunal should have used the comparison of men and women seeking leave to care for a new-born child at present or in the future. Both cases were heard together before the Court of Appeal.

In relation to the first case, the Court held that there was no direct discrimination against Mr Ali as the purpose of maternity leave and parental leave was different. The Court held that maternity leave was to allow the mother to recover and Mr Ali was incorrect in his argument that the purpose of maternity leave after the mandatory two week period was to assist with childcare. The Court found that for the purpose of a claim of direct discrimination, Mr Ali’s situation was comparable to that of a female employee on shared parental leave.

In the case of Hextall, while the original claim concerned indirect discrimination, the employer agreed that before the Court of Appeal it should be considered as an equal pay claim. Mr Hextall argued that his terms of work had been changed by the sex equality clause in the Equality Acts, which provides that like work should be treated as of equal value. Mr Hextall put forward that this entitled him to take leave to care for his new born at the same rate of pay as mothers on maternity leave. The Court of Appeal rejected this argument as the sex equality clause did not affect the special treatment provided for women in relation pregnancy or childbirth. As the substance of the complaint had now changed, the Court could not rule on the indirect discrimination however indicated that there was no valid comparison between Mr Hextall and a new mother when trying to establish disadvantage to male employees.

Both Mr Ali and Mr Hextall are seeking permission to appeal their cases.

Click here for the decision in Ali v Capita Customer Management Limited and Chief Constable of Leicestershire v Hextall.



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