Unequal Shared Parental Pay v Maternity Pay not discriminatory

17 April 2018

Last week the Employment Appeal Tribunal (EAT) gave judgment in the case of Capita v Ali UKEAT/0161/17/BA and concluded it was not discriminatory to pay a man less shared parental pay than a woman would have received on maternity pay.

Mr Ali commenced shared parental leave when his child was a few weeks old and his wife returned to work. Mr Ali was unhappy to discover that he would receive less shared parental pay than a woman would have received at the same stage on maternity pay. His grievance regarding this issue was not upheld and Mr Ali brought a claim before an Employment Tribunal.

Around the same time another male brought a claim against another employer on the same grounds: Hextall v The Chief Constable of Leicestershire Police.

Mr Hextall lost his claim; Mr Ali won his claim. Appeals were filed and the linked cases were dealt with by the EAT.

On direct discrimination, the EAT found in Capita’s favour. Primarily, because:

  • The Tribunal had failed to consider or have regard to the purpose of paid maternity leave – the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. Indeed this is the rationale for the legal provision for maternity leave and pay under UK and EU law.
  • The Tribunal was wrong to hold that the circumstances of the Claimant father were comparable within the meaning of section 23(1) of the Equality Act 2010 to those of a woman who had recently given birth as both had leave to care for their child.
  • Such a finding failed to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay.
  • Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken.
  • Shared parental leave and pay are given on the same terms for men and women i.e. a female partner would have received the same entitlements as Mr Ali during those weeks.

Mr Ali’s related claims of victimisation were largely successful.

If you would like to discuss your Company’s Maternity, Shared Parental Leave, and/or Paternity policies – contact us anytime.