In two key cases, the Employment Appeal Tribunal has confirmed that it is not directly discriminatory to pay enhanced maternity pay but only statutory shared parental leave pay. However, there is a risk that such a practice could be indirectly discriminatory.
Direct Discrimination: Ali v Capita
Mr Ali’s wife suffered from post natal depression and had been advised to return to work to deal with this. Mrs Ali transferred the balance of her maternity leave to Mr Ali under the statutory shared parental leave scheme. Under Capita’s shared parental leave policy, Mr Ali was allowed to take two weeks’ fully-paid paternity leave following the birth of his child, followed by a number of weeks’ annual leave.
Mr Ali asked Capita for his shared parental leave pay to be enhanced and for him to be paid the same higher rate as a woman on maternity leave. He raised a grievance which was rejected. When this was refused, he then issued proceedings claiming both direct and indirect discrimination.
At first instance, the employment tribunal agreed that he should have the same entitlement as female staff members on maternity leave, since failure to match a mother’s entitlement in these circumstances amounted to unlawful direct sex discrimination. In reaching this decision the tribunal compared Mr Ali to a woman on maternity leave. The tribunal also rejected the argument put forward by Capita that s.13(6)(b) of the Equality Act 2010 (“the special protection provision” afforded to women in connection with pregnancy or childbirth, which allows more favourable treatment) could protect an employer from a challenge to enhanced maternity pay.
Indirect Discrimination: Hextall v Chief Constable of Leicestershire Police
Like the above case, Hextall involved a father who was not paid enhanced pay during a three month period of shared parental leave. He argued a female police constable on maternity leave would have received full pay over the period he took shared parental leave and this was both directly and indirectly discriminatory. The employment tribunal dismissed both claims of direct and indirect discrimination, following the same reasoning as above that a man taking shared parental leave cannot compare himself to a woman taking maternity leave.
Mr Hextall appealed to the EAT. The EAT found that the tribunal had erred in applying a direct discrimination comparator (as in a woman on maternity leave) to an indirect discrimination claim. Assessing an indirect discrimination claim involves considering whether a policy, condition, or precedent (PCP) is in practice which has the effect of putting those with a particular protected characteristic at a disadvantage.
The EAT remitted the decision on the indirect discrimination claim to a new employment tribunal to reconsider, and examine whether the practice, if found to be discriminatory, can be justified.
Whilst the question of whether different rates of maternity and shared parental leave pay is direct discrimination now appears settled, until the case of Hextall is decided there remains uncertainty as to whether this may still be indirectly discriminatory.
The approach of the EAT in Hextall suggests that a successful indirect discrimination claim is now more likely and represents a risk to employers who have different approaches to maternity and shared parental leave pay. However, it is worth remembering that even where a PCP is found to put a particular group at a disadvantage, employers can still successfully defend any claim if they are able to show that that the policy of paying different rates is a proportionate means of achieving a legitimate aim.
Employers therefore need to consider how any difference can be justified. For example, an employer could argue that the enhanced rights to full pay of a woman in maternity leave is justifiable on the basis of preserving her health following pregnancy and the well-being of her child. Whether or not such an argument would succeed will depend on the facts of the case.
For further information please contact a member of the Employment team.