Enhanced Maternity Pay Policies are not Discriminatory to those on Shared Parental Leave!

Ali v Capita and Hextall v Chief Constable of Leicestershire Police

The Court heard two cases on the issue of whether paying higher rates of maternity pay to women, than those parents taking shared parental leave was directly or indirectly discriminatory on grounds of sex contrary to the Equality Act 2010. In both cases the Court rejected the contention there was sex discrimination by paying women higher rates of maternity pay than males on shared parental leave.

At Capita female employees were entitled to maternity pay of up to 39 weeks, with the first 14 weeks on full pay, followed by 25 weeks of the lower rate statutory maternity pay. Parents whom took shared parental leave were only entitled to statutory shared parental pay.

At Leicestershire Police women were entitled to 18 weeks’ at full pay followed by 39 weeks of statutory maternity pay, while those on shared parental leave were again only paid at statutory rates.

The cases were very similar but despite this the arguments submitted on behalf of each Appellant were different. Ali argued that paying him less than a woman amounted to directdiscrimination, whilst Hextall argued that paying women on maternity leave more than those on shared parental leave amounted to indirectdiscrimination against men.

Ali concerned a father who took shared parental leave following his partner’s early return to work after she was diagnosed with post-natal depression. Ali stated that it was directly discriminatory that mothers were entitled to 14 weeks of enhanced maternity pay and fathers only received 2 weeks enhanced parental pay.

At the ET he was initially successful in a claim of direct sex discrimination, but this was overturned in the EAT. In short, the EAT rued that there were “reasons other than sex, mainly the health and wellbeing of the mother before and post-birth that meant women should not be comparators.” Based on this the EAT held that the further 12 weeks enhanced pay women on maternity leave were entitled too was not discriminatory.

Hextall concerned a father who took shared parental leave as his wife was a business owner had the company had difficulty in allowing/facilitating her leave. Leicestershire Police policy was that those taking maternity pay were entitled to 15 weeks enhanced pay but those taking parental leave were not entitled to any enhanced pay and received the statutory shared parental leave pay only. Hextall was unsuccessful at ET, and his appeal was also rejected in the EAT.

Both Ali and Hextall appealed the decision and their cases were referred to the Court of Appeal. Rejecting both appeals, the CoA held that, despite allowing two weeks compulsory maternity leave, the purpose of further maternity leave was not solely to do with childcare as was shared parental leave. “Therefore, men on shared parental leave and women on maternity leave were not suitable comparators and the difference in pay was not discriminatory.