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  • Overview

    The Court of Appeal has handed down its judgment in two joined cases which concerned whether it was discriminatory to pay men on shared parental leave less than women on enhanced maternity pay terms.

    In both cases:

    • The claimant was the new father and was suing his employer
    • The employer paid enhanced maternity pay, at full pay, for the first 14 and 18 weeks respectively of maternity leave
    • The claimants took a period of shared parental leave during what would have been the first 14 or 18 weeks (as applicable) of their partner’s maternity leave, had she not returned to work early.

     

    Shared parental leave

    Shared parental leave was introduced in 2015. It enables couples to divide the women’s maternity leave entitlement of 50 weeks between them. The two weeks compulsory maternity leave immediately after birth must be taken by mother.

    In a straightforward example, the woman might elect to return to work after 26 weeks of maternity leave (including the two weeks of compulsory maternity) and transfer her remaining 26 weeks of maternity leave to her partner. The partner’s 26 weeks off work is known as shared parental leave. 

    Couples have some flexibility as to how they apportion the shared parental leave between them and it is possible for the woman to return to work for, say, a few months, during which time the partner takes shared parental leave to care for the baby, and then she takes a further period of leave from work. This is an example of how a woman can end up taking shared parental leave, which will become relevant below.

    The claims

    The claimants brought claims for direct sex discrimination, indirect sex discrimination and breach of equal pay law.

    Direct discrimination

    As was widely expected, the direct discrimination claims failed. The comparator for a man on shared parental leave was a woman on shared parental leave. A woman on shared parental leave, at either of the claimants’ organisations, would also have been paid at the statutory rate too, as the enhanced maternity pay was only available to women on maternity leave. 

    The Court of Appeal said that it was not correct for a man on shared parental leave to compare himself to a woman on maternity leave, because maternity leave is unique to women in order to provide for their health and safety in connection with childbirth.

    Indirect discrimination

    The indirect discrimination claim at the tribunal had focused on the question of whether the employer’s policy to not pay men on shared parental leave the same as women on maternity leave could be justified as a proportionate means of achieving a legitimate aim. This is the common defence to indirect discrimination claims. 

    In fact, in the Court of Appeal, this claim did not get off the ground because of a provision in the Equality Act 2010 that stated that where there was an equal pay claim available, a claimant could not also claim indirect sex discrimination.

    However, the court chose to indulge us by setting out why it would have rejected the indirect discrimination claim anyway.

    The court pointed out that for the purposes of an indirect discrimination claim, the pool of individuals upon whom the effect of the provision criteria or practice (PCP) is evaluated must be populated by persons who are in the same, or not materially different, position from the claimants.

    As a woman on maternity leave was in a materially different position from the male claimants, they should be excluded from the pool, which just leaves a pool of women on shared parental leave to compare against, and who would have been paid the same as the men.

    Further, the court explained if it was indirect discrimination, that the employer could have justified the treatment as a proportionate means of achieving a legitimate aim for the special treatment of women in connection with pregnancy or childbirth. To find that employers must equalise pay for maternity leave and shared parental leave would undermine the special treatment afforded to women in connection with pregnancy and childbirth contrary to EU law.

    Equal Pay

    Equal pay legislation implies into all employment contracts a clause that the employee would be paid the same as an employee of the opposite sex carrying out the same job, or job of equal value. 

    So in these cases, what was being considered was the provision in the employment contracts of the claimants that provided women on maternity leave with a higher level of pay then men on shared parental leave.

    But the Equality Act provides that the implied equal pay clause does not apply where the difference in treatment is in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth. So the equal pay claim failed.

    Conclusion

    If your organisation offers women on maternity enhanced pay, you no longer need to worry that this may be discriminatory against your male employees.

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