The Employment Appeal Tribunal ("EAT") has just resolved a difficult conundrum that had resulted in conflicting decisions in the Employment Tribunal ("ET").


Mr Ali worked for Capita. His daughter was born in February 2016 and he took two weeks’ paid paternity leave. He asked his employer whether he could take another period of leave, and he was told that he could take shared parental leave (“SPL”) but that he would be paid only statutory shared parental pay. His female colleagues who took maternity leave were entitled to be paid 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay.

Mr Ali thought that this was unfair. He raised a grievance, which was rejected by Capita. He then brought a claim for direct sex discrimination in the ET, arguing that after the first two weeks’ compulsory maternity leave period, men and women should be paid the same when they took time off to care for their new-born child. As such he argued he should receive the equivalent of the enhanced maternity pay female colleagues received.

The ET decided in Mr Ali’s favour. It held that Mr Ali could compare himself, after the first two weeks’ maternity leave, to a woman on maternity leave who had given birth. The ET said that both the father and the mother in such a case were taking leave to look after their baby, and so they should be paid the same. However, in a similar case brought in the ET by Mr Hextall against his employers, Leicestershire Police, the ET reached a different conclusion.

So, are men and women the same?

The appeal judge decided to look at the purpose of the legislation that introduced maternity leave and shared parental leave.

The EU Pregnant Workers Directive requires EU states to introduce legislation which enables women to take maternity leave with adequate remuneration for a minimum of 14 weeks. This, the Directive states, is to encourage improvements in the safety and health at work of pregnant workers, workers who have recently given birth and workers who are breastfeeding. In other words, maternity leave and maternity pay have been introduced for the health of the mother. This conclusion is also supported by the fact that a pregnant woman is entitled to receive maternity pay when her maternity leave starts before her child is born – and therefore before she has a new-born child to care for.

Parental leave, on the other hand, is expressed in the EU Parental Leave Directive to entitle men and women workers, on the birth or adoption of a child, to take care of that child until a specific age.The Directive does not require any payment to be made during parental leave.SPL does not derive from EU legislation, and so the UK legislation sets out what payment is to be made to parents who take SPL.

The appeal judge summarised this as follows:

The purpose of maternity leave is to safeguard the health and wellbeing of the woman;

Whilst a mother will no doubt take care of her baby during her maternity leave, that is not the primary purpose of the leave;

By contrast, the purpose of SPL is for the care of the beneficiaries’ child.

The appeal judge went on to say that the level of pay given to a woman on maternity leave is inextricably linked to the purpose of the leave – which does not apply to a man. In any event, there is a specific exclusion in the Equality Act 2010 that allows special treatment to be given to women in connection with pregnancy or childbirth.

In those circumstances, the appeal judge confirmed that the correct comparator was a woman on SPL.As parents of either sex are given SPL on the same terms, the “inevitable conclusion” was that Mr Ali was not discriminated against on the grounds of his sex.

Can men ever be treated as coming from Venus?

This case was unusual in that the EAT agreed to consider submissions from an Intervenor, an organisation called “Working Families”.Working Families argued that “after a period of 26 weeks, the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child.At that point it may be possible to draw a valid comparison between a father on SPL and a mother on maternity leave”.The appeal judge acknowledged that a claim based on those facts may well allow a father to compare himself to a mother; however, that was not the case here.

This leaves the door ajar for men to argue that they should be paid the same as women at a later point in the life of their new-born child – so watch this space!

For further information relating to the points raised in this article, please contact Louise Connacher, Partner in the firms’ award-winning Employment Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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