The Court of Appeal has ruled that an employer’s failure to enhance shared parental pay in the same way as enhanced maternity pay was not unlawful.  The Court considered that a woman on maternity leave was not in comparable circumstances to someone on shared parental leave, as the purpose of maternity leave was to provide special protection for the health and wellbeing of mothers in connection with pregnancy, childbirth and breastfeeding, whereas the purpose of shared parental leave is to facilitate childcare.

In Ali v Capita Customer Management Ltd the claimant argued that a failure to enhance shared parental pay to mirror enhanced maternity pay (payable for 12 weeks’ maternity leave in addition to compulsory maternity leave) was direct discrimination.  This was rejected on the basis that the correct comparator was a woman on shared parental leave, who would be treated equally, and not a woman on maternity leave.  In any event, the claim would be defeated by the statutory provision precluding account being taken of special treatment afforded to a woman in connection with pregnancy or childbirth.  The Court was not persuaded by arguments that the purpose of maternity leave had been changed by the introduction of the right to swap it for shared parental leave (after compulsory maternity leave).  It did not have to decide whether the same applied in relation to additional maternity leave starting 26 weeks after birth, given the short period of maternity enhancement in this case.  The Court also did not consider it necessary to consider the fact that non-birth parents now have identical rights to mothers on maternity leave.

In the joined case of Chief Constable of Leicestershire Police v Hextall, the claim was framed as one of indirect discrimination.  Overturning the EAT, the Court of Appeal ruled that the claim (again in relation to pay for 12 weeks’ shared parental leave) could only be brought as an equal pay case for breach of the statutorily implied sex equality clause in the contract of employment, and that this would be defeated by the express statutory provision that such claims could not be brought in relation to terms affording special treatment to women in connection with pregnancy or childbirth.  Statute prevents equal pay claims being framed as sex discrimination actions (even if the equal pay claim could not succeed). Further, even if the claim could properly be brought as an indirect discrimination claim, that would also fail as (i) the pool for comparison would only include women on shared parental leave and not those on maternity leave (for the same reasons as in Ali), and (ii) in any event the differential treatment would have been justified by the legitimate aim of providing special protection for women in connection with pregnancy and childbirth.

Although this ruling will be welcome to employers who provide more generous pay for those on maternity leave than for those on shared parental leave, permission to appeal to the Supreme Court has been sought. It is also worth noting that equalising pay enhancement, to encourage greater take-up of shared parental leave by men, has been repeatedly suggested as one measure to help reduce the gender pay gap.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819