The Court of Appeal has held in Capita Customer Management Ltd v Ali and Hextall v The Chief Constable of Leicestershire Police that a failure to pay men enhanced shared parental pay is not discriminatory on grounds of sex.
In Capita Customer Management Ltd v Ali the Court of Appeal found that it was not direct discrimination against Mr Ali, a new father whose wife had post-natal depression, to be allowed to take only two weeks' leave on full pay, when female staff were entitled to 14 weeks' enhanced maternity leave. It held that the purpose of maternity leave is to assist the health of the mother, while the Parental Leave Directive (which does not provide for paid leave) provides for the care of the child. The appropriate hypothetical comparator for Mr Ali was an employee caring for her child, and the relevant leave to be considered was shared parental leave, not maternity leave.
Meanwhile, in Hextall, Mr Hextall, a police constable, took SPL from 1 June to 15 September 2015 to care for his second child, while his wife went back to running her own business. During that period he was paid at a rate of £139.58 per week. Mr Hextall claimed that he had been unlawfully discriminated against as a man because, had he been a female police constable on maternity leave he would have been entitled to be paid his full salary for the period over which he took SPL.
The Court of Appeal dismissed his claim. It found that there was no direct discrimination complaint as there was no relevant less favourable treatment. The Court also dismissed his claim for indirect discrimination because a woman on maternity leave getting enhanced maternity pay could not be a valid comparator for a man on SPL getting shared parental leave pay. The relevant provision, criterion or practice (PCP) did not put men at a particular disadvantage when compared with women.
The Court of Appeal then considered the issue of equal pay (both employers agreed that because the complaints were essentially about discriminatory rates of pay, the claims should be properly characterised as equal pay claims). As the Equality Act 2010 precludes an equal pay claim in relation to terms that afford special treatment to women in connection with pregnancy or childbirth, the claim had to be rejected.
Both parties are seeking permission to appeal to the Supreme Court.
Take note: It will come as a relief to employers that a failure to enhance shared parental pay will not be discriminatory, although this may not be the last word on the issue. In the meantime, however, employers need to be aware that in the modern workplace more families are likely to demand that their employers cater for the more flexible ways in which they chose or are obliged to divide or share their childcare.
This article is taken from HR Law – June 2019.
