In the conjoined appeals of Ali v Capita Customer Management Ltd and anor and The Chief Constable of Leicestershire Police v Hextall and anor, the Court of Appeal has held that it is not discriminatory to pay men on Shared Parental Leave (SPL) less than women on maternity leave.
Basic facts
Ali – After taking two weeks’ paternity leave for which he was paid full pay, Mr Ali asked to take SPL but was told that he would only be paid at the statutory rate. He claimed direct sex discrimination as his female colleagues were entitled to full pay for 14 weeks.
Hextall – Mr Hextall took 14 weeks of SPL for which he was paid at the statutory rate. He brought a claim alleging that the policy of paying SPL at the statutory rate caused particular disadvantage to men and was unlawful direct and indirect discrimination. The Chief Constable argued that this was really a claim for unequal pay which should be dismissed because of the exemption in Paragraph 2 of Schedule 7 of the Equality Act 2010 which states that “a sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth”.
Tribunal and EAT decisions
Ali – The tribunal held that he was entitled to full pay for the whole time (apart from the mandatory two weeks of maternity leave) as Mr Ali wished to perform the same role as an equivalent female employee on maternity leave: caring for his child. The EAT (weekly LELR 576), however, held that maternity leave was provided expressly to ensure the health and safety of the mother following pregnancy and childbirth; whereas SPL was to enable parents to look after their newborn. The tribunal should therefore have compared Mr Ali with a woman taking SPL as opposed to a woman taking maternity leave.
Hextall – The tribunal rejected the argument on unequal pay, holding that it was a claim for indirect discrimination. However, it also rejected this claim on the basis that paying the statutory rate for SPL was not particularly disadvantageous to men as the same amount was paid to women. The EAT (weekly LELR 576) held that men did face a particular disadvantage as women had a choice as to whether to take maternity leave or SPL. Fathers, on the other hand, had no choice and would be deterred from taking leave to care for a child if they were only paid the statutory rate of pay for SPL. It therefore remitted the claim to be heard by a different tribunal.
Decision of Court of Appeal
Ali: Dismissing the appeal, the Court held that SPL did not alter the predominant purpose of statutory maternity leave which was to protect the health of the woman during and after pregnancy, to bond with their child and to facilitate a breastfeeding regime. As such, the purpose of maternity leave (not just the first two weeks) was to protect the health and well-being of both mother and child as opposed to simply facilitating a system of childcare. As there was a material difference between Mr Ali and a female worker entitled to statutory maternity leave, the correct comparator was with a woman taking SPL.
Hextall – The Court held firstly that Mr Hextall's claim was, in fact, a claim for equal terms with a woman’s entitlement to take time off to care for her new baby. As such he was asking for a sex equality clause to be implied into his contract. However, this could not be granted because of the exemption in Paragraph 2 of Schedule 7 of the Equality Act. As the Act also excluded claims for indirect discrimination which would otherwise be equal pay claims (were it not for the exemption), this claim also failed.
Comment
We understand that Mr Hextall has renewed his application to appeal to the Supreme Court and is expecting a decision as to whether his appeal can progress in September 2019.