No, said the Court of Appeal recently as it ruled that under equality law it is not discriminatory on the basis of sex for an employer to pay men on shared parental leave less than the enhanced rate paid to women on maternity leave.
What is shared parental leave?
Shared parental leave (SPL) enables eligible mothers, fathers, partners and adopters to choose how to share time off work following their child’s birth or adoption.
It is compulsory for mothers to take the initial two weeks after birth as maternity leave (four weeks, if they are factory workers), but after this, eligible parents can then decide to reduce the period of maternity leave and exchange it for SPL. This provides more flexibility by enabling parents to be off work together for up to 6 months or alternatively stagger their leave and pay so that one of them is always at home with their baby in the first year.
Despite the flexibility offered by shared parental leave, since the statutory regime was introduced in April 2015, the uptake amongst parents has been low. Arguably, one of the main reasons why SPL has not been more popular is that those employers who enhance maternity pay are not legally obliged to also enhance shared parental pay.
The Court of Appeal decision
In the latest stage of ongoing legal proceedings between two fathers and their employers, the Court of Appeal upheld a previous ruling in the combined cases of Capita v Ali and Hextall v Chief Constable of Leicestershire.
Both cases questioned whether it was unlawful sex discrimination under the Equality Act 2010 for men to be paid less on shared parental leave than woman on maternity leave.
The cases related to two men whose employers offered women at the respective workplaces enhanced maternity pay on top of the statutory minimum, but only paid SPL at the statutory rate of £145.18 per week.
In Mr Ali’s case, women working at Capita were entitled to maternity pay of up to 39 weeks, with the first 14 weeks paid at their full pay followed by 25 weeks of lower rate statutory maternity pay; while parents taking SPL received statutory shared parental pay only.
A similar policy operated at Leicestershire Police whereby women on maternity leave were entitled to 18 weeks’ full pay followed by 39 weeks of statutory maternity pay while those such as Mr Hextall on SPL were again only paid at statutory rates.
Both Mr Ali and Mr Hextall claimed that being paid less than the amount a new mother in their position would be paid during maternity leave amounted to sex discrimination.
In the judgment delivered recently, the Court of Appeal ruled that male employees taking SPL cannot be compared to female staff on maternity leave, because new mothers are required to use their time off, in part, to recover from pregnancy and childbirth. According to the Court, this was not a need shared by the other parent, and it was therefore not discriminatory to offer more generous pay for maternity leave than SPL.
The Court found that different rates of pay for mothers on maternity leave and fathers on SPL is therefore not unlawful sex discrimination and neither does it breach the equal pay legislations.
While it may at first sight appear to be unfair to pay women differently to men who take time to care for their new-borns, the decision reaffirms that maternity leave and shared parental leave are inherently different and serve different purposes; while the focus of SPL relates to childcare, the Court’s decision is a reminder that the predominant purpose of maternity leave is in respect of the mother’s health and wellbeing following pregnancy and thereafter.
The Equality Act 2010 permits ‘special treatment’ of women in respect of pregnancy and childbirth; such special treatment as confirmed by this decision is not available to anyone other than a birth mother, which means the partners of birth mothers are not discriminated against if they do not receive enhanced benefits for taking shared parental leave. But remember, employers must ensure that within an SPL scheme, men and women are treated equally and paid at the same rate in the same circumstances.
While the Court of Appeal decision brings consistency to the position, it may not be the end of this ongoing legal battle. Both Mr Ali and Mr Hextall are seeking permission to appeal this decision, and if allowed, we may need to wait for the Supreme Court to provide a final resolution on this issue.