Sharing is caring

In two cases that were heard together at the beginning of the month, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, the court unanimously rejected both claims.

Capita entitled women to enhanced maternity for up to 39 weeks, with the first 14 weeks paid at full pay followed by 25 weeks of statutory maternity pay. Leicestershire Police operated a similar policy with women being entitled to 18 weeks’ full pay. In both cases, parents taking shared parental leave only received statutory shared parental pay.

Although the facts of the cases were remarkably similar, they were brought under different legal bases. Ali argued that paying him less than a woman amounted to direct discrimination whereas Hextall argued that the policy of paying women on maternity leave more than those on shared parental leave was indirectly discriminatory against men, and it was considered an equal pay issue.

Ali mounted the rather ‘brave’ argument that only the first two weeks of compulsory maternity leave are necessary to protect a mother following childbirth, and that taking maternity leave (rather than switching to shared parental leave) beyond that date was a “choice” regarding childcare arrangements. He argued that there should not be a financial incentive for the mother to stay at home and, therefore, a corresponding disincentive for the father not to be the primary childcare provider. 

The judges did not hold back in roundly quashing such a challenge and said Ali’s arguments amounted to an “attack against the whole statutory scheme” under which special treatment is afforded to women on maternity leave and that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare”.

Examples given were that such time helps women prepare and cope with the later stages of pregnancy, recuperate from giving birth, bond with their child, breastfeed (if that is their choice) and care for their newborn. By contrast, shared parental leave was predominately about childcare.

In Hextall, Leicestershire Police argued that Hextall’s complaint was about equal pay. Hextall argued that the sex equality clause (the clause which the Equality Act imposes in all contracts of employment where an individual does work that is equal to the work done by a comparator of the opposite sex) should modify his terms of employment, by including a term which gave him leave and pay at the same rates as a police officer taking maternity leave.

However, as the Court of Appeal made clear, Parliament have already excluded such a claim in the Equality Act in order to protect the special treatment afforded to a woman in connection with pregnancy or childbirth.

Employers can rest assured for now that, legally, their shared parental pay arrangements need not be enhanced, as a failure to do so will probably not be discriminatory. However, in the modern workplace, this issue won’t go away, as families demand that their employers cater for the more flexible ways in which they choose or are obliged to divide or share their childcare.

These decisions will be welcomed by employers that pay higher rates to women on maternity leave than to parents on different types of family leave. Employers who reduced maternity pay entitlements due to concern about the outcome of these cases can think again, safe in the knowledge that, for now at least, they will not fall foul of discrimination law .

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.