Employers can have lower shared parental pay than enhanced maternity pay…for now

12 June 2019

The Court of Appeal has recently passed down its judgment in the combined cased of Capita v Ali and Hextall v Chief Constable of Leicestershire to hold that a man on shared parental leave is not discriminated against if he is paid less than a woman on maternity leave at the same employer.

The appeals were brought by two men who argued that they were being discriminated against on the grounds of their sex where they took shared parental leave. In both cases, a woman on maternity leave from the same employer was entitled to a more generous enhanced pay package than was available for those on shared parental leave. As the men were only able to take shared parental leave, and not maternity leave, they argued that this was discriminatory.

The Court of Appeal disagreed, considering that shared parental leave for childcare purposes is to be distinguished from maternity leave which is a health and safety measure to enable women to recover from childbirth. Therefore it was not directly discriminatory to offer women in such circumstances greater enhanced pay over and above the statutory minimum. The Court also found that it was not indirectly discriminatory to have the provision, criterion or practice (PCP) of differing pay structures because men and women were not placed at a particular disadvantage by the PCP. Even if it was, the Court held that differing pay structures between shared parental leave and maternity leave would be a proportionate means of achieving the legitimate aim of providing special treatment to maternity.

At present, therefore, it is not discriminatory to pay men and women on shared parental leave less than women on maternity leave.

However, we must still watch this space as the men involved in this case are both seeking leave to appeal to the Supreme Court. We will keep you posted!

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