Chelsea Brooke-Ward discusses: Enhanced Maternity Pay Policies not discriminatory to those on Shared Parental Leave

Ali v Capita and Hextall v Chief Constable of Leicestershire Police

The Court heard two cases on the issue of whether paying higher rates of maternity pay to women, than those parents taking shared parental leave and whether that was directly or indirectly discriminatory on grounds of sex, contrary to the Equality Act 2010. In both cases the Court rejected the contention that there was sex discrimination, directly or indirectly, by paying women higher rates of maternity pay than males on shared parental leave.

At Capita female employees were entitled to maternity pay of up to 39 weeks, with the first 14 weeks on full pay, followed by 25 weeks of the lower rate statutory maternity pay. Parents whom took shared parental leave were only entitled to statutory shared parental pay.

At Leicestershire Police women were entitled to 18 weeks’ at full pay followed by 39 weeks of statutory maternity pay, while those on shared parental leave were again only paid at statutory rates.

The cases were very similar but despite this the arguments submitted on behalf of each Appellant were different. Ali argued that paying him less than a woman amounted to direct discrimination, whilst Hextall argued that paying women on maternity leave more than those on shared parental leave amounted to indirect discrimination against men.

Ali concerned a father who took shared parental leave following his partner’s early return to work after she was diagnosed with post-natal depression. Ali stated that it was directly discriminatory that mothers were entitled to 14 weeks of enhanced maternity pay and fathers only received 2 weeks enhanced parental pay.

At the Employment Tribunal he was initially successful in a claim of direct sex discrimination, but this was overturned in the Employment Appeal Tribunal. In short, the Employment Appeal Tribunal rued that there were “reasons other than sex, mainly the health and wellbeing of the mother before and post-birth that meant women should not be comparators.” Based on this the Employment Appeal Tribunal held that the further 12 weeks enhanced pay women on maternity leave were entitled too was not discriminatory.

Hextall concerned a father who took shared parental leave as his wife was a business owner had the company had difficulty in allowing/facilitating her leave. Leicestershire Police policy was that those taking maternity pay were entitled to 15 weeks enhanced pay but those taking parental leave were not entitled to any enhanced pay and received the statutory shared parental leave pay only.

Hextall was unsuccessful at Employment Tribunal, and his appeal was also rejected in the Employment Appeal Tribunal.

Both Ali and Hextall appealed and the cases were jointly referred to the Court of Appeal. Rejecting the appeal the Court of Appeal held that, despite there being two weeks compulsory maternity leave, the purpose of further maternity leave was not solely to do with childcare. “Therefore, men on shared parental leave and women on maternity leave were not suitable comparators and the difference in pay was not discriminatory.”

Both appeals were therefore dismissed.

Chelsea Brooke-Ward is currently undertaking her pupillage at Park Square Barristers.

Chelsea quickly developed experience in Employment Litigation through pro bono and consultancy work she undertook with various employment firms in Leeds before starting her pupillage at Park Square Barristers.

On 3rd October 2019 Chelsea will be presenting an employment seminar in Leeds on practicalities of proving disability and discrimination. To book onto the seminar please contact 0113 245 9736 or seminars@psqb.co.uk.