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Education HR e-briefing - Appeal tribunal rules on discrimination in shared parental leave vs maternity leave pay

  • United Kingdom
  • Education - Briefings

11-04-2018

The Employment Appeal Tribunal (EAT) has today ruled that an employer did not directly discriminate against men by paying women enhanced maternity pay for the first 14 weeks of maternity leave whilst paying only statutory pay during shared parental leave.

The EAT judge reasoned that the purpose of shared parental leave is to enable a parent to care for a child, whereas the purpose of maternity leave (or at least the 14 week period of leave and pay guaranteed by EU law under the Pregnant Workers Directive) is to protect the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. This difference, the judge said, means the position of a woman in the first 14 weeks of maternity leave cannot be compared with that of a man on shared parental leave. Therefore, the claim of direct discrimination failed.

Today’s judgment has a sting in its tail, however. For the judge acknowledged that the position might be different if enhanced maternity pay continues for a longer period. The Working Families organisation had been permitted to intervene in the case and suggested that “…after a period of 26 weeks (or ordinary maternity leave) the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.” The judge accepted that this might well be the case but did not determine that point one way or another. Nor does today’s decision address the question of whether different pay rates for maternity and shared parental leave could indirectly discriminate against men – that issue is being considered by the same judge in a different case, with a ruling likely to follow in the next few weeks.

Many employers who pay more than the statutory minimum during maternity leave have chosen not to mirror those enhancements for shared parental leave. For those who confine enhanced maternity pay to the first 14 weeks of leave this decision provides a measure of comfort, although until the indirect discrimination point is determined there will remain some uncertainty. Institutions who provide more generous maternity benefits that run on beyond 14 weeks, and especially those with enhancements continuing for more than 26 weeks, will find this decision less reassuring, however, given the suggestion that the position might well be different in such cases.

Capita Customer Management Ltd v Ali, Employment Appeal Tribunal, 11 April 2018

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