Charlotte Davies

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Stephanie Wilcox

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Failure to enhance shared parental pay is not discriminatory

employmentlaw@work / 12 April 2018

ISSUE:

The Employment Appeal Tribunal (‘EAT’) has overturned the Employment Tribunal’s (‘ET’) earlier decision in Ali v Capita Customer Management Ltd [2017] on which we reported here.

The employee in this case, Mr Ali, wished to take shared parental leave (‘SPL’) to look after his daughter.  He was informed that he would only be paid statutory shared parental pay (‘ShPP’), even though a female employee on maternity leave would have been eligible to receive 14 weeks’ basic salary as enhanced maternity pay.  The ET concluded that Mr Ali could compare himself with a female colleague taking maternity leave and that the denial of full pay amounted to less favourable treatment due to his sex.

In overturning this decision, the EAT pointed out that the primary purpose of maternity leave and pay is to protect the health and wellbeing of the mother.  In contrast, the primary purpose of shared parental leave is to care for a child. The appropriate comparator in Mr Ali’s case was therefore a woman on shared parental leave who would have taken shared parental leave on the same terms as him, not a woman taking maternity leave. Given that a woman on shared parental leave would not have received enhanced pay, Mr Ali was not discriminated against on the grounds of his sex.

KEY DATES:

The judgment was delivered on 11 April 2018.

IMPACT:

Whilst this case is good news for employers, they should bear in mind that:

  • The EAT stated that after 26 weeks the purpose of maternity leave may change. It may be possible at this point to draw a valid comparison between a man on shared parental leave and a woman on maternity leave. A case with these facts might yield a different result.
  • We are still awaiting the EAT’s decision in a similar case – Hextall v Chief Constable of Leicestershire Police [2016] – where the ET held that it was not discriminatory to offer enhanced maternity pay to a woman on maternity leave but only statutory ShPP to a man on SPL.

ACTION:

There is no immediate action to be taken in relation to your shared parental pay policies.

We will update you again when the EAT decision in Hextall is released as you may need to reconsider your business’ stance at that stage.

In the meantime, some businesses are enhancing shared parental pay and you may wish to consider doing the same.

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