The appeal tribunal has recently heard two cases concerning men who brought sex discrimination claims because they received statutory pay when on Shared Parental Leave (SPL) compared to women who received enhanced pay when on maternity leave. In the first case (below) we look at the facts of the claim for direct sex discrimination and in the second (Hextall v CC of Leicestershire Police) we look at the facts of the claim for indirect sex discrimination and consider the implications. You will find a comment on both at the end of the Hextall summary.
In Capita Customer Management Ltd v Ali, the Employment Appeal Tribunal (EAT) has held that it was not direct sex discrimination to pay a man on SPL at the statutory rate when a woman on maternity leave would have received enhanced maternity pay.
Relevant law
Direct sex discrimination arises where a person is treated less favourably because of sex in comparison to someone not of the same sex in the same or not materially different circumstances.
The Equality Act 2010 also provides that in a case of sex discrimination brought by a man no account is to be taken of special treatment afforded to women in connection with pregnancy or childbirth.
The Maternity and Parental Leave Regulations 1999 provide for compulsory maternity leave for two weeks immediately following the birth.
Basic facts
After his daughter was born in February 2016, Mr Ali took two weeks’ paternity leave for which he was paid full pay. He then took a further week’s paid annual leave to care for his wife - who had been diagnosed with post-natal depression - and his daughter. As his wife had been advised to return to work to help her recovery, he asked his employer if he could take SPL. They agreed but said that he would only be paid at the statutory rate.
He claimed that it was direct sex discrimination to only pay him the statutory rate as his female colleagues were entitled to full pay for 14 weeks’ maternity leave under their policy.
Tribunal decision
The tribunal held that, after the two-week compulsory period of leave for women, Mr Ali could compare himself with a hypothetical female comparator on maternity leave who was caring for the child. The tribunal distinguished between the two-week period of compulsory leave which applied to a woman who had just given birth and the further 12 weeks’ maternity leave which was to care for the child. It considered that caring for a child was not exclusive to the role of the mother.
The tribunal also held that the special treatment provisions did not apply beyond the two-week compulsory period. As such, paying women enhanced maternity pay following the two-week leave period did not amount to special treatment in connection with pregnancy and childbirth and Mr Ali could therefore compare himself with a woman receiving enhanced maternity pay. The tribunal opined that this was not about denying full pay to a woman but about access to the same benefits for performing the same role i.e. the care of a new-born baby.
EAT decision
The EAT, however, held that the tribunal was wrong to compare Mr Ali’s circumstances with those of a woman who had just given birth. Although a mother would, like any father, be involved in caring for her baby that was not the purpose of maternity leave and pay, but rather its consequence. Instead the purpose was to ensure the health and wellbeing of women while they were pregnant and subsequently when they were on maternity leave.
In reaching its decision the EAT took into account the purpose of the Pregnant Workers Directive, namely to implement measures to encourage improvements in the health and safety at work of pregnant workers and those who have recently given birth or who are breastfeeding along with the provision of an “adequate allowance”. The EAT also considered European case law which established that the primary purpose of maternity leave and pay is the health and well-being of the mother. The fact that maternity leave and pay could be taken before the birth of the baby reinforced the EAT’s view that maternity leave and pay was not for the purpose of caring for the child.
This was in contrast to the EU Parental Leave Directive, the purpose of which was to encourage men to share family responsibilities. Similarly the provisions of the domestic SPL enabled a woman to bring her maternity leave to an end and share the balance with her spouse or partner as SPL and pay.
As the purpose of SPL and maternity leave were different and the level of pay was inextricably linked to the purpose of such leave, Mr Ali could not therefore compare himself to a woman on maternity leave. The EAT held that the correct comparator was a woman on SPL. Furthermore, the EAT considered that even if they were wrong about that, the special treatment provisions applied to a woman in connection with pregnancy and childbirth and Mr Ali could not therefore compare himself to the more favourable treatment which applied to women on maternity leave.