It is not discriminatory to pay men on Shared Parental Leave (SPL) less than an enhanced rate paid to women on maternity leave, the Court of Appeal has ruled.
Whether the claim is expressed as direct or indirect sex discrimination or as an equal pay claim, the Court of Appeal decided in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall that different pay rates between men on SPL and women on maternity leave were not discriminatory.
Writing in Daniel Barnett’s Employment Law Bulletin, Matthew Jackson of 10 KBW, outlined the three different approaches to these cases. First, the Court considered direct discrimination and whether men and women were in comparable positions.
“The exception to a comparison between employees for ‘special treatment afforded to a woman in connection with pregnancy or childbirth’ is wide enough to include enhanced maternity pay,” wrote Jackson.
“The minimum of 14 weeks' leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks and ‘the predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner’.
As such, men on SPL and women on maternity are not comparable for the purposes of the Equality Act 2010.
Second, the Court considered this issue as an equal pay claim. Jackson explained that the Equality Act 2010 provides that “the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded elsewhere in the Act. Paragraph 2 of Schedule 7 to the act says: ‘A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth’.”
Again, this provision includes enhanced maternity pay and therefore there is no claim for equal pay as it is excluded by the Equality Act 2010.
Finally, the Court looked at indirect discrimination.
“There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. The exception for equal pay in paragraph 2 of schedule 7 therefore means that and indirect discrimination claim cannot be brought either,” concluded Jackson.
As a result of these findings both appeals were dismissed.
These findings support the current framework within many organisations as shown in recent surveys however, continued concern around the workings of Shared Pay and Leave has given rise to further reviews by government later in the year.
