Is it discriminatory for employers to pay men less for shared parental leave (SPL) than they would for a woman on maternity leave? In the recent case of Ali v Capita Customer Management, the employment tribunal (ET) ruled that the answer was 'yes' - and not to do so was, in fact, direct sex discrimination.
The decision came about because Capita Customer Management offered Mr Ali only statutory pay during SPL, even though the statutory pay was enhanced under the terms of its maternity policy.
But the case comes into direct conflict with another recent ET decision relating to Hextall v Chief Constable of Leicestershire Police. While both rulings currently being taken to the Employment Appeal Tribunal (EAT), they suggest that employers should now check the basis on which SPL is paid.
Shared parental leave
The SPL regulations, which came into force on 1 December 2014, allow parents to take SPL in the first year after their child's birth or adoption. The purpose of SPL is to allow the mother or primary adopter to end their maternity or adoption leave, or commit to ending it at a future date, and share the undertaken leave with the other parent.
This scenario enables mothers and primary adopters to return to work early without sacrificing the rest of the leave that would otherwise be available to them for caring for their child in it5 first year. The scheme provides for up to 50 weeks of SPL and means that 37 weeks of SPL pay are available for eligible parents to take or share - the sum covers everything other than a two week compulsory maternity leave period or an equivalent two week period in adoption cases.
In theory, a mother or primary adopter could switch her maternity or adoption leave to SPL. But in practice, most women remain on maternity or adoption leave and allow the other parent to take a share of their leave as SPL.
SPL can be taken consecutively or concurrently with the mother or primary adopter's leave provided that the aggregate leave taken does not exceed what is jointly available to the couple.
To enhance pay or not to enhance pay?
When SPL schemes were first drafted, many employers evaluated whether to offer enhanced
SPL pay in line with whatever they offered as enhanced maternity pay. As a result, they were faced with two options - they could:
1. Offer statutory pay during SPL - which is the same rate as lower statutory maternity pay-irrespective of whether it was taken by the
2. Seek to offer enhanced SPL pay in line with their enhanced maternity pay, if any.
Either way, the question arose failing to offer enhanced SPL as to whether pay gave rise to potential discrimination - it was anticipated that men were more likely to take SPL than women or, at least, men would be able to take leave to care for their child in its first year if its mother or primary adopter gave up their right to maternity leave.
One of the publicly expressed reasons for implementing SPL was to reflect the fact that, other than during the compulsory two-week maternity leave (in maternity cases), either parent was entitled to take leave to care for their child in its first year. It was for the parents to decide between them how this leave should be carved up.
Family-friendly legislation over at least the last five years has moved away from providing benefits solely to women as they will not necessarily continue to be their children's primary careers. It recognises that fathers (and other parents) may want to share childcare responsibilities.
Facts of the matter
Having being diagnosed with post-natal depression, Mr Ali’s wife in the Ali v Capita Customer Management case was advised to return to work. This meant that Mr Ali needed to take time off work to care for their child in its first year. While his employer had no objection to him taking SPL for this purpose, it only offered statutory SPL pay. Mr Ali complained that, in order to care for his child, he should receive the same entitlements during SPL as a woman taking maternity leave - his employer offered 14 weeks enhanced maternity pay.
Setting aside the two week compulsory maternity leave period and any leave taken by a given woman prior to giving birth (up to a maximum of 11 weeks), Mr Ali’s argument that he should be treated equally to a female on maternity leave after these periods was compelling as, after the two week compulsory period, the purpose of the leave was to care for his child in its first year.
However, in the Hextall v Chief Constable of Leicestershire Police case, the ET disagreed and instead ruled that the correct comparator for a man on SPL was a woman on SPL and not a woman on maternity leave.
Conclusions
In the wake of the Ali v Capita Customer Management case, it seems that limiting the comparator to a woman taking SPL is potentially artificial. For same sex couples, a female partner taking SPL (and receiving statutory SPL pay) will be unable to assert sex discrimination when comparing herself to a woman taking maternity leave and receiving enhanced maternity pay.
The EAT decisions in both of these cases will be important. At present, neither the Ali nor the Hextall rulings would bind another ET, but as the EAT decision will set a precedent, it would be wise to keep a watching brief on how both cases pan out.
The latest case, Ali, does seem more in line with the general direction of travel in enabling men to become more involved in childcare responsibilities though. It also chimes with the government’s manifesto pledge to encourage greater take-up of shared parental leave.
But for the moment, pending the outcome of the appeal of both cases, employers would be advised to review whether their enhanced benefits have a potentially discriminatory impact.
Emma Bartlett at Charles Russell Speechlys advises on all aspects of employment law including unlawful discrimination, whistleblowing, equal pay, unfair dismissal, breach of contract, restrictive covenants, protecting confidential information, boardroom disputes, holiday pay and TUPE. She has experience in obtaining and executing interim injunctions against former employees who have breached confidentiality and/or restrictive covenant provisions. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker. She is a specialist in contentious discrimination matters and has significant experience in handling high-value contentious claims for employers and senior individuals.
Is it discriminatory for employers to pay men less for shared parental leave (SPL) than they would for a woman on maternity leave? In the recent case of Ali v Capita Customer Management, the employment tribunal (ET) ruled that the answer was 'yes' - and not to do so was, in fact, direct sex discrimination.
The decision came about because Capita Customer Management offered Mr Ali only statutory pay during SPL, even though the statutory pay was enhanced under the terms of its maternity policy.
But the case comes into direct conflict with another recent ET decision relating to Hextall v Chief Constable of Leicestershire Police. While both rulings currently being taken to the Employment Appeal Tribunal (EAT), they suggest that employers should now check the basis on which SPL is paid.
Shared parental leave
The SPL regulations, which came into force on 1 December 2014, allow parents to take SPL in the first year after their child's birth or adoption. The purpose of SPL is to allow the mother or primary adopter to end their maternity or adoption leave, or commit to ending it at a future date, and share the undertaken leave with the other parent.
This scenario enables mothers and primary adopters to return to work early without sacrificing the rest of the leave that would otherwise be available to them for caring for their child in it5 first year. The scheme provides for up to 50 weeks of SPL and means that 37 weeks of SPL pay are available for eligible parents to take or share - the sum covers everything other than a two week compulsory maternity leave period or an equivalent two week period in adoption cases.
In theory, a mother or primary adopter could switch her maternity or adoption leave to SPL. But in practice, most women remain on maternity or adoption leave and allow the other parent to take a share of their leave as SPL.
SPL can be taken consecutively or concurrently with the mother or primary adopter's leave provided that the aggregate leave taken does not exceed what is jointly available to the couple.
To enhance pay or not to enhance pay?
When SPL schemes were first drafted, many employers evaluated whether to offer enhanced
SPL pay in line with whatever they offered as enhanced maternity pay. As a result, they were faced with two options - they could:
1. Offer statutory pay during SPL - which is the same rate as lower statutory maternity pay-irrespective of whether it was taken by the
2. Seek to offer enhanced SPL pay in line with their enhanced maternity pay, if any.
Either way, the question arose failing to offer enhanced SPL as to whether pay gave rise to potential discrimination - it was anticipated that men were more likely to take SPL than women or, at least, men would be able to take leave to care for their child in its first year if its mother or primary adopter gave up their right to maternity leave.
One of the publicly expressed reasons for implementing SPL was to reflect the fact that, other than during the compulsory two-week maternity leave (in maternity cases), either parent was entitled to take leave to care for their child in its first year. It was for the parents to decide between them how this leave should be carved up.
Family-friendly legislation over at least the last five years has moved away from providing benefits solely to women as they will not necessarily continue to be their children's primary careers. It recognises that fathers (and other parents) may want to share childcare responsibilities.
Facts of the matter
Having being diagnosed with post-natal depression, Mr Ali’s wife in the Ali v Capita Customer Management case was advised to return to work. This meant that Mr Ali needed to take time off work to care for their child in its first year. While his employer had no objection to him taking SPL for this purpose, it only offered statutory SPL pay. Mr Ali complained that, in order to care for his child, he should receive the same entitlements during SPL as a woman taking maternity leave - his employer offered 14 weeks enhanced maternity pay.
Setting aside the two week compulsory maternity leave period and any leave taken by a given woman prior to giving birth (up to a maximum of 11 weeks), Mr Ali’s argument that he should be treated equally to a female on maternity leave after these periods was compelling as, after the two week compulsory period, the purpose of the leave was to care for his child in its first year.
However, in the Hextall v Chief Constable of Leicestershire Police case, the ET disagreed and instead ruled that the correct comparator for a man on SPL was a woman on SPL and not a woman on maternity leave.
Conclusions
In the wake of the Ali v Capita Customer Management case, it seems that limiting the comparator to a woman taking SPL is potentially artificial. For same sex couples, a female partner taking SPL (and receiving statutory SPL pay) will be unable to assert sex discrimination when comparing herself to a woman taking maternity leave and receiving enhanced maternity pay.
The EAT decisions in both of these cases will be important. At present, neither the Ali nor the Hextall rulings would bind another ET, but as the EAT decision will set a precedent, it would be wise to keep a watching brief on how both cases pan out.
The latest case, Ali, does seem more in line with the general direction of travel in enabling men to become more involved in childcare responsibilities though. It also chimes with the government’s manifesto pledge to encourage greater take-up of shared parental leave.
But for the moment, pending the outcome of the appeal of both cases, employers would be advised to review whether their enhanced benefits have a potentially discriminatory impact.
Emma Bartlett at Charles Russell Speechlys advises on all aspects of employment law including unlawful discrimination, whistleblowing, equal pay, unfair dismissal, breach of contract, restrictive covenants, protecting confidential information, boardroom disputes, holiday pay and TUPE. She has experience in obtaining and executing interim injunctions against former employees who have breached confidentiality and/or restrictive covenant provisions. With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker. She is a specialist in contentious discrimination matters and has significant experience in handling high-value contentious claims for employers and senior individuals.
