In Capita Customer Management Ltd v Ali and anor, the Employment Appeal Tribunal (”EAT”) held that it is not direct sex discrimination for an employer to offer enhanced maternity pay and fail to pay enhanced shared parental pay in line with this.
Mr Ali worked for Capita Customer Management Ltd (“CCM Ltd”) as a result of a TUPE transfer. Mr Ali claimed that he suffered direct sex discrimination when his employer failed to pay enhanced shared parental pay equivalent to the maternity pay that a woman on maternity leave for the same period would have received.
Mr Ali argued that as the SPL regime allows parents to choose which of them takes leave to care for their child following the mother’s two-week compulsory maternity leave period, it was discriminatory for the mother to be paid more than the father in respect of the remaining leave. Mr Ali accepted that there was a material difference in circumstances between himself and a woman on maternity leave during the two-week period of compulsory maternity leave; however, he argued that no further special treatment was justified under s13(6)(b) Equality Act 2010 (“EqA 2010”) – which states that special treatment afforded to a woman in connection with pregnancy or childbirth does not give rise to direct sex discrimination against men.
The tribunal upheld Mr Ali’s claim of direct discrimination. It accepted that he could compare himself with a hypothetical female employee taking leave to care for her child after the two-week compulsory maternity leave period. The tribunal considered it irrelevant that he had not given birth, since he was not comparing himself with a woman who had given birth but with a woman taking leave to care for her child after the end of compulsory maternity leave. As for whether the difference in treatment was exempted by s13(6)(b), the tribunal could not see why any preferential treatment for women should apply beyond the two-week compulsory maternity leave period. The tribunal observed that men are now being encouraged to take a greater role in caring for their children and that the choice of which parent should take on the greater burden of caring responsibility should be made free of assumptions that the mother is best placed to do so. It concluded that the caring role that Mr Ali wanted to perform was not a role exclusive to the mother. Thus, it was not special treatment in connection with pregnancy and childbirth.
CCM Ltd appealed to the EAT. The domestic and European legislation establishing rights to family-related leave was examined and it was found that it draws a clear distinction between the rights given to pregnant workers and those who have given birth or are breastfeeding, who by reason of biology are women, and the rights given to the parents of either sex to take leave to care for their child. The purposes of the two sets of rights are different, as are the circumstances of those to whom they are given. The EAT pointed out that the primary purpose of the EU Pregnant Workers Directive (No.92/85) is the health and wellbeing of the pregnant and birth mother, and requires Member States to provide for at least 14 weeks of maternity leave paid at least at the same level as statutory sick pay. In contrast, the EU Parental Leave Directive (No.2010/18) focuses on the care of the child and makes no provision for pay. Thus, in so far as the tribunal’s decision rested on the proposition that the purpose of the statutory maternity leave and pay given to a woman after the compulsory first two weeks is for the care of the child, it did not accord with the purpose of the Pregnant Workers Directive. While a woman on maternity leave will no doubt take care of her child, that is not the expressed or primary purpose of such leave. By contrast the purpose or reason for shared parental leave is for the care of the beneficiaries’ child.
In addition, the tribunal was found to have adopted the wrong comparator. In the EAT’s view, the correct comparator would be a woman on shared parental leave, who would have been given SPL on the same terms as Mr Ali received. The inevitable conclusion was that Mr Ali was not discriminated against. Furthermore, even if the tribunal’s proposed comparator had been correct, the tribunal erred in finding that the comparator’s more favourable treatment would not have fallen under S.13(6)(b).
The EAT noted that it may be that after 26 weeks the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child, and it may at that point be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. A claim based on such facts might well involve such a comparison.
Overturning the tribunal’s decision, the EAT held that Mr Ali taking shared parental leave is not comparable with a woman on maternity leave. The primary purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth and the level of pay is inextricably linked to the purpose of the leave. In contrast, the purpose of shared parental leave is the care of a child.
The payment of maternity pay at a higher rate was therefore lawful as it fell within the exception in the EqA 2010 as special treatment afforded to a woman in connection with pregnancy or childbirth.
We are awaiting judgment in Hextall v Leicestershire Police which is linked to this case and considers the question of whether it is indirect sex discrimination to pay men on shared parental leave at a lower rate than mothers on maternity leave.