Unlawful sex discrimination and shared parental leave pay
Pursuant to the Supreme Court’s refusal to allow the appeal in Chief Constable of Leicestershire v Hextall, the earlier Court of Appeal decision in both Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall remains the binding authority that paying men taking shared parental leave less than the enhanced rate of maternity pay paid to women on maternity leave is not discriminatory.
The Legislative framework
The Social Security Contributions and Benefits Act 1992 and the Statutory Maternity Pay (General) Regulations 1986 establish that maternity pay is available for 39 weeks.
The Statutory Shared Parental Pay (General) Regulations 2014 allows the additional portion of maternity leave to be shared between the mother and her partner as they see fit, but requires the mother to terminate her maternity leave before shared parental leave can be used.
The Facts
Both Claimants disputed the lower rate of pay they received by virtue of taking shared parental leave compared to women taking leave during the same additional period.
Mr Ali’s wife was diagnosed with post-natal depression and was advised by the doctor to return back to work. Mr Ali therefore sought to take time off to look after his daughter and requested that he be paid the same as an employee on maternity leave. He was, however, only entitled to the shared parental leave statutory pay which was lower than his ordinary rate of pay.
Mr Hextall was a police constable and his wife was a business owner. Mr Hextall took shared parental leave one month after the birth of his child and was paid the statutory rate for shared parental leave. Mr Hextall sought to bring a claim for indirect discrimination on the basis that the low pay in shared parental leave put men at a particular disadvantage.
Direct Discrimination
Section 13 Equality Act 2010 states that person A directly discriminates against person B where A treats B less favourably than A treats or would treat others, and A does so because of a protected characteristic. The protected characteristic include, inter alia, sex.
An emphasis was placed on the unsuitability of relying on a female comparator taking maternity leave “because the entitlements payable to each serve a different purpose”. The Court stated that maternity leave protects the health and safety of mothers following pregnancy and childbirth whilst shared parental leave is designed to help parents look after their newborn children.
The Court also focused on the predominant purpose of maternity leave which was linked to “matters exclusive to the birth mother resulting from pregnancy and childbirth”. Such matters, the Court stated, are not shared by husbands or partners. The only suitable comparator the Court identified is a woman taking shared parental leave, in which case the woman would have the same entitlement to pay and leave as a man.
Equal Pay
Equal pay (or equality of terms) protection aims to achieve equality between men and women in pay and/or other terms of employment where the work of an employee and an opposite sex comparator is equal. This is done by including a sex equality clause into the employee’s contract to ensure equality.
Mr Hextall argued that the difference in pay between his shared parental leave and the maternity pay for women amounted to an equal pay claim and that the enhanced level of pay is more favourable to women than men.
Schedule 7, paragraph 2 of the Equality Act 2010 states that:
“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.”
The Court held that whilst maternity pay amounted to “special treatment” which is in connection with the woman’s pregnancy and childbirth, the sex equality terms did not include Mr Hextall’s terms of work and the provision stated above excluded his equal pay claim.
Indirect Discrimination
Section 19 of the Equality Act 2010 (“EqA 2010”) provides that a person indirectly discriminates against another (the complainant) if the complainant possesses any one of the protected characteristics other than ‘pregnancy and maternity’ and:
• s/he applies a provision, criterion or practice (PCP) to the complainant, and
• s/he applies, or would apply the same PCP to persons who do not possess the same protected characteristic as the complainant, and
• that PCP puts or would put persons who possess the complainant’s protected characteristic at a particular disadvantage when compared with persons who do not possess it, and
• that PCP puts, or would put, this individual complainant at that disadvantage, and
• the person cannot show that the PCP is justified, ie ‘a proportionate means of achieving a legitimate aim’
The provision, criteria and practice (“PCP”) which Mr Hextall argued was placing him at a substantial disadvantage was “paying only the statutory of pay for those taking period of shared parental leave”. The Court, however, decided that it was not the PCP causing a particular disadvantage to men when compared to women. They instead considered that the reason for disadvantage is the fact that only a birth mother is entitled to statutory or contractual maternity pay. An important factor in the discussion around the PCP was, at 116 that:
“the argument on behalf of Mr Hextall ignores the fact that shared parental leave is not available at all unless the mother has decided to terminate her maternity leave”.
The indirect discrimination claim, was, however, dismissed because the exception in Schedule 7 Paragraph 2 included indirect discrimination claims.
Conclusion
It is important to note that the statutory scheme is derived from European Union law which provides special treatment to women giving birth. The decision was influenced by the intention to preserve that special treatment. We are therefore yet to see whether the post-Brexit era will change the Court’s view, however for the time being, it remains apparent that an employer paying shared parental leave at a different rate is unlikely to be found unlawful.
