DISCRIMINATION: Maternity pay -v- shared parental pay

An employer did not discriminate by enhancing maternity pay, but failing to enhance shared parental pay.

The Court of Appeal decided that:

• employers that pay enhanced maternity pay but only statutory shared parental pay do not directly or indirectly discriminate against men and are not in breach of equality of terms (equal pay) legislation. This is because a man taking shared parental leave is in materially different circumstances to a birth mother who is on maternity leave and maternity leave and shared parental leave have different predominant purposes.
• concerning a claim of direct discrimination, the correct comparator is a female employee on shared parental leave. There is no difference in treatment between such a comparator and a man on shared parental leave, so the claim must fail.
• a claim of indirect discrimination also fails, because the claim should instead be properly characterised as an equality of terms claim. However, such a claim must also fail because paragraph 2 of Schedule 7 to the Equality Act 2010 (EqA 2010) provides that the sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth, such as relating to maternity pay. Further, a claim for indirect discrimination cannot be brought where the claim is an equal terms claim, even if the equal terms claim fails because of the application of the statutory exception.

Ali v (1) Capita Customer Management, (2) Working Families (Intervener), Chief Constable of Leicestershire Police v (1) Hextall, (2) Working Families (Intervener) 2019 EWCA Civ 900.

We understand the parties are seeking leave to appeal to the Supreme Court on this matter.