Failing to pay enhanced shared parental leave (SPL) is not direct sex discrimination, finds Employment Appeal Tribunal (EAT).
The EAT found that the purpose of maternity pay and leave is different to that of SPL. It held that the employment tribunal’s original decision had been wrong in finding that, following the initial two weeks of maternity leave, its purpose was for childcare.
In Capita Customer Management Limited v Ali the EAT highlighted that maternity pay and leave is designed to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave. It went on to say that the father’s situation was not comparable to that of a woman on maternity leave.
Daniel Barnett’s employment law newsletter stated: “The purpose of SPL is different from that of maternity leave/pay. The EAT noted that SPL is given on the same terms for both men and women. There is therefore no direct discrimination when a higher level of maternity pay is given than would be given to either sex on SPL.”
The EAT also held that paying a higher rate of maternity pay fell under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.
Working Families, a work life balance charity, intervened in this case to ensure that women remain protected in law. Responding to the decision, Chief Executive of the charity Sarah Jackson, said that the decision was an important safeguard for the special employment protection needed for pregnant women and new mothers.
“We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law,” she said. “Only women can experience childbirth, and maternity leave is to protect women’s health and wellbeing – it cannot simply be equated with “childcare”.”
She added that although the charity campaigns for greater rights and pay for working fathers, these should complement, not undermine, the rights of working mothers.
