Shared Parental Leave
Failing to enhance shared parental leave pay in line with enhanced maternity pay is not direct sex discrimination, says EAT.
In the case of Capita v Ali, the Claimant complained that as a male employee he was entitled to Shared Parental Leave Pay at the statutory rate following the birth of his child, whereas the company offered a contractual benefit to a female employee of 14 weeks’ pay following the birth of her child.
The EAT held that the Claimant’s situation was not akin to a woman on maternity leave as the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth.
The EAT noted that the terms of shared parental leave are identical for both men and women and there is therefore no direct discrimination. The EAT held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.
However, it may be significant that the enhanced maternity pay was payable for 14 weeks in line with the Pregnant Workers Directive, (which requires that women receive statutory maternity leave and pay for a minimum of 14 weeks), and that the Directive makes it clear that maternity leave and the pay associated with it are for the health and wellbeing of the woman. If the enhanced maternity pay period had been longer, it is not clear whether the argument that the enhancement related to special treatment for a woman, as distinct from childcare, would stand.