Should shared parental leave be paid at enhanced rates like maternity leave?

Not according to the Employment Appeal Tribunal (EAT). The EAT held in Capita Customer Management Ltd v Ali that maternity leave was not the same as shared parental leave, and to have pay differentials between the two was not discriminatory.

The facts

Mr Ali’s wife was diagnosed with postnatal depression following the birth of their child, and was advised to return to work. Mr Ali, who was employed by Capita, had taken two weeks’ paid leave immediately upon the birth of his child, and due to his wife’s circumstances he wished to take further leave to look after his child. Capita informed Mr Ali that he was eligible to take Shared Parental leave (SPL), which would be paid in accordance with the statutory pay requirements. (currently paid at the rate of £145.18 a week or 90% of your average weekly earnings, whichever is lower).

However Mr Ali raised a grievance claiming that he should receive enhanced SPL as his female colleagues were entitled to enhanced maternity leave. The grievance was not upheld by Capita and Mr Ali issued proceedings at the Employment Tribunal on the grounds of direct and indirect sex discrimination.

Employment Tribunal (ET)

The ET held that Mr Ali had been directly discriminated against on the ground of his sex, but dismissed his indirect discrimination claim. This is because the ET considered it immaterial that Mr Ali had not given birth, since he was comparing himself with a woman taking leave to care for a child after the end of compulsory maternity leave. Mr Ali  was not comparing himself with a woman who had given birth.

The ET decided that, on the facts of the case, the caring role that Mr Ali wanted to perform was not a role exclusive to the mother, as men are being encouraged to take a greater role in caring for their child.

EAT

Capita appealed the ET’s decision and the EAT found that the ET’s conclusion was based on incorrect facts. This was because;

For maternity leave:

The Pregnant Workers Directive requires member states to provide a minimum of 14 weeks’ maternity leave paid at least at the same level as statutory sick pay; and

For Shared Parental leave:

The Parental Leave Directive focuses on the care of the child and makes no provision for pay.

Thereby, the ET’s finding that the purpose of the statutory maternity leave and pay given to a woman after the compulsory first two weeks is for the care of the child did not accord with the purpose of the Pregnant Workers Directive. As maternity leave and pay is for the health and wellbeing of the mother. The purpose or reason for SPL is for the care of the beneficiaries’ child.

Therefore the correct comparator could not be a woman on maternity leave, it would be a woman on SPL who was given SPL on the same terms/rate as Mr Ali.

Comments

The case confirms that employers can continue to provide female employees enhanced maternity pay, as the reason for compulsory maternity leave is for the woman to recover from child birth,  and it will be difficult for a male employee to compare himself to a woman in these circumstances. However, employers should take care when dealing with requests for SPL as the case of Ali suggests that a male employee can compare himself to a female employee who may be receive enhanced SPL as the purpose of SPL is for the care of the child.

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