Is it discriminatory to offer enhanced maternity pay but not enhanced shared parental leave pay?

Since the introduction of the shared parental leave regulations in 2015, there has been uncertainty around whether or not it is discriminatory for an employer to enhance maternity pay but not enhance shared parental leave pay for men.

Last year, in the case of Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police, the Court of Appeal was asked to consider whether a failure to match pay for shared parental leave to the level of maternity pay constituted either direct or indirect sex discrimination. The Court held that it did not (click here for more details).

Following Court of Appeal’s decision, an application for permission to appeal was made to the Supreme Court, the outcome of which has been eagerly anticipated. The Supreme Court has, however, refused the application to appeal. This means that the Court of Appeal decision stands and, whilst that decision brings certainty for many employers who offer enhanced maternity pay but not enhanced shared parental leave pay, it also means that the uptake of shared parental leave is likely to remain low.

What does this mean for you?

This latest development is likely to reinforce calls for a change in legislation to provide for greater equality of parenting rights. A free standing right to leave for both parents, together with comparable statutory pay entitlement in some form, would seem the most likely option to encourage more equal sharing and pay in respect of childcare responsibilities and to promote greater gender equality and inclusivity in the workplace and at home. However, a change in legislation anytime soon seems unlikely……

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