Are men on shared parental leave entitled to be paid the same as women on maternity leave when enhanced maternity pay is available?

In April 2015, a new system of statutory parental rights was introduced which allowed working parents to share childcare responsibilities following the birth or adoption of a child. The aim of this new system of shared parental leave was to encourage both parents to spend time with their child during the first 12 months.

The take-up rate of shared parental leave has been lower than the Government envisaged. This may, in part, be due to the fact that, whilst some employers offer enhanced maternity pay, most do not extend these enhanced pay arrangements to those taking shared parental leave. Therefore, it makes more financial sense for the woman to take maternity leave than for her male partner to take shared parental leave.

It is perhaps therefore unsurprising that  a number of cases were commenced by men arguing that they were being discriminated against because of their sex and that they should receive the same amount of pay as a woman also caring for a child who took maternity leave. This was because women had the choice of taking maternity leave (which in some cases, offered enhanced pay) or shared parental leave (which in most cases, offered statutory pay only), whilst men could only take the latter and were therefore disadvantaged financially as a result.

During the course of last year, the Court of Appeal considered two separate cases involving arguments from men that they were being discriminated against because of sex on the basis that their employers failed to offer enhanced shared parental pay, despite offering enhanced maternity pay. We discussed the facts of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall in another blog post last June.

The Court of Appeal in these cases held that it was neither direct or indirect discrimination, nor a breach of the equal pay sex equality clause, for an employer to pay a man taking shared parental leave less than a woman on maternity leave.

In Ali, the Court of Appeal held that the correct comparator for a man on shared parental leave, was a woman also taking shared parental leave. It would not be correct for a man to compare himself with a woman on maternity leave because the primary purpose of maternity leave is the health and wellbeing of the birth mother, not the facilitation of childcare.

The correct comparator in Mr Ali’s direct discrimination claim was therefore not a female employee on maternity leave, but a female employee on shared parental leave. As both the comparator and Mr Ali would be paid the same whilst on shared parental leave, there was no direct discrimination because he was not treated less favourably than the woman.

In Hextall, the Court of Appeal considered whether the “sex equality clause” requirement in the Equality Act 2010 applied. The sex equality provision implies a clause into all contracts of employment to ensure that if a term in a contract is less favourable to a man, than to a woman (or vice versa), that term is modified so as not to be less favourable, except where more favourable terms are enjoyed by a woman as a result of pregnancy or childbirth. Mr Hextall argued that the woman was protected in the first 2 weeks following childbirth but that thereafter men and women should be treated equally.

The Court of Appeal held that Mr Hextall’s claim could not succeed because the Equality Act prevented him from relying on the sex equality clause where his comparator’s more favourable terms related to special treatment afforded to her in connection with pregnancy or childbirth.

The outcomes of these cases will have been welcomed by those employers who do offer enhanced maternity, on the basis that they would not have to match that pay for those employees taking shared parental leave.

However, the certainty that these Court of Appeal decisions brought was to be called into question when Mr Hextall sought permission to appeal his decision to the Supreme Court.

Employers will, however, now be able to breathe a sigh of relief as the Supreme Court has now refused leave to appeal against these decisions.

The Court of Appeal’s decisions therefore remain binding and should now be the final word on this matter.

This decision will again come as welcome news to employers and provides finality to the question over whether enhanced pay provisions should also be given to those taking shared parental leave. Employers will not be required to amend their current policies to enhance shared parental pay to match any enhanced pay provisions in their maternity leave policy. However, it is a blow to those arguing for a greater sharing of childcare responsibilities between men and women and is likely to set back parity in pay between men and women who have taken time out to have children which is where the greatest division in pay resides.

If you would like any further information, please contact Kathryn Moorhouse on 0113 280 2231 or kathryn.moorhouse@luptonfawcett.law or another member of the employment law 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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