21-02-2020

In May 2019, the Court of Appeal, in two joint cases, announced a decision that the failure to pay enhanced shared parental pay to match enhanced maternity pay was not sex discrimination. The court ruled that there was no direct discrimination, as a male on shared parental leave for childcare purposes is not in any comparable circumstances to a birth mother on leave for health and safety purposes.

Therefore, men and women in comparison were not placed at any particular disadvantage, the sex equality clause does not apply where there is ‘special treatment’ relating to maternity.

The two joint cases, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, concerned claims of discrimination in relation to shared parental leave allowances. In both cases, the employer had enhanced the pay of women during maternity leave, without doing the same for shared parental leave.

Capita provides an occupational maternity pay scheme to their female staff, the first 14 weeks of leave is paid at the employees full pay, followed by 25 weeks of statutory maternity pay. Leicestershire Police Force provide their staff with 18 weeks of maternity leave at full pay. It also provides a shared parental leave scheme which mirror the statutory shared parental leave requirements.

Mr Ali brought a claim against Capita, for unlawful direct sex discrimination. He accepted the fact that there was no direct connection between himself and a mother during the first two weeks of maternity leave, the compulsory period of maternity leave, which is in place to allow a mother on leave to recover after giving birth. However, Mr Ali’s complaint was in relation to the following 12 weeks of leave at full pay which were only paid to female members of staff.

Mr Hextall brought a similar claim against his employer, Leicestershire Police Force, to the Supreme court of appeal. Mr Hextall alleged that his employer’s policy caused a particular disadvantage to men and was unlawful discrimination.

The Supreme Court has this month refused permission to appeal this decision which effectively means that it will remain binding.


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