The Court of Appeal has today handed down its decision in two much-anticipated appeal cases concerning the entitlement of men to receive shared parental leave pay equivalent to any enhanced maternity leave pay offered by their employer.

Last year in the case of Capita Customer Management Ltd v Ali, the Employment Appeal Tribunal concluded that failing to enhance shared parental leave, when employers offer enhanced maternity pay, is not direct sex discrimination against men.  The EAT’s decision closely followed another decision by the EAT in Hextall v Chief Constable of Leicestershire Police, which rejected claims of direct sex discrimination in similar circumstances on the basis that the correct comparator to a man claiming shared parental leave (SPL) could only be a woman claiming SPL, not a woman on maternity leave.

Both cases were appealed and last week the Court of Appeal was asked to consider whether the failure to match pay for shared parental leave to the level of maternity pay constitutes either direct or indirect sex discrimination.

Today the Court of Appeal has held that failing to match pay for SPL to the level of maternity pay is neither direct nor indirect discrimination. Both appeals have therefore been dismissed.

The Court confirmed that there is a “material difference” between a man wishing to take shared parental leave, and a female worker who is entitled to statutory maternity leave, such that she will not be an appropriate comparator for discrimination purposes.

The Court confirmed that:

The restriction of maternity pay to birth mothers cannot be the subject of a direct discrimination claim or an equal terms claim because Parliament has made an exception for provisions giving special treatment to a woman in connection with pregnancy or childbirth.”

The Court commented that, a result which meant that employers should equalise payment for maternity leave and SPL would eliminate, at least in respect of the period during which parental leave may be shared, the special treatment afforded to a woman in connection with pregnancy or childbirth, which would be contrary to public policy.…

The Court also held that it is not indirect discrimination to have a policy of paying statutory pay to men on SPL because men and women in the appropriate comparison pool (that is, men and women on SPL) were not placed at any particular disadvantage by that policy, criteria or practice.  In any event any such disadvantage would be justified as it was proportionate and legitimate to apply the policy of European law ensuring special treatment relating to maternity.

While the decision is potentially good news for employers who offer enhanced maternity leave packages but do not extend the enhancement to male employees on shared parental leave, it will do nothing to help improve the abysmally low uptake by fathers of shared parental leave, and serves to reinforce the view of women as primary carers in the workplace.

It remains to be seen, however, whether the employees involved will now appeal to the Supreme Court.

If you would like to discuss this issue further, please get in touch with me or your regular contact in the Burness Paull employment team.

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