Employers can pay women taking maternity leave more than men taking shared parental leave

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The Employment Appeal Tribunal (EAT) has handed down an important decision in the cases of Capita Customer Management Ltd v Ali which clarifies that employers who enhance maternity pay, but not shared parental pay, do not directly discriminate against men.
This is because the primary purpose of maternity leave and pay is to protect the health and wellbeing of the mother, whereas shared parental leave is designed to enable both parents to care for their child.
The two types of leave are therefore not comparable – at least for the first 14 weeks.

In Ali v Capita, Mr Ali asked to take shared parental leave to care for his new born baby following his wife’s early return to work. He was informed that he would only receive the statutory rate of pay, and he argued that this amounted to direct sex discrimination because women on maternity leave in his area of the business received 14 weeks’ full pay.
He argued that men taking ShPL should be entitled to receive 12 weeks full pay as he accepted that the first two weeks of compulsory maternity leave could be treated differently.

Capita refused to enhance ShPP for Mr Ali and he issued proceedings alleging both direct and indirect sex discrimination.

The Employment Tribunal decided that Capita’s policy did amount to direct sex discrimination. It drew a distinction between the first two weeks compulsory maternity leave and the remaining weeks. It said that the principle purpose of compulsory maternity leave was to give women time to recover from childbirth.
However, after that time, maternity leave enabled women to care for their child. ShPL enabled parents to make choices about the care of their child and it was not appropriate to assume that a mother is always “best placed to undertake that role and should get full pay because of that assumed exclusivity.”

It said that Mr Ali should be entitled to the same benefits for performing the same role as that performed by a woman on maternity leave.

Capita appealed.

The EAT found that Capita’s policy did not directly discriminate against men because:

The purpose of maternity leave and pay is to protect the health of the mother. By contrast, ShPL is designed to help parents share the care of their child. It is therefore inappropriate to compare the two types of leave and the differences in pay cannot amount to direct discrimination.

The correct comparator in this case is a woman on parental leave – not a man. Parents of either sex were given shared parental leave on the same terms and so there was no discrimination.

If you would like some advice or support when it comes to maternity leave or shared parental leave in your workplace, then call us on 0845 2626 260 where our qualified HR consultants can provide you with professional advice.

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