Paying women on maternity leave and men on shared parental leave differently was not direct discrimination

Capita Customer Management Ltd v Ali

Maternity leave cannot be compared with shared parental leave and the correct comparator was a woman on shared parental leave.

Background

Two employment tribunal cases on the same issue: whether it is sex discrimination to pay women on maternity leave enhanced maternity pay but not to pay men taking shared parental leave enhanced pay, came to different conclusions. In Hextall v The Chief Constable of Leicestershire Police the tribunal had held it was not discrimination and in Ali v Capita Customer Management Ltd the tribunal had held that it was.

In Mr Ali’s case, women on maternity leave were entitled to 14 weeks at full pay but men and women on shared parental leave were only entitled to shared parental leave pay. The company policy said that the purpose of shared parental leave was to care for the child and the tribunal said that the purpose of maternity leave was also to care for the child and therefore to pay a man and a woman differently was direct sex discrimination.

Given the importance of the decision, the EAT had allowed the Working Families group to ‘intervene’ in the case and they made submissions in which they urged the EAT to remember that shared parental leave was aimed at care for the child, whereas they submitted that the first 26 weeks of maternity leave was there to allow women to recover from the biological recovery from childbirth and the special bonding between mother and child.

Submissions made at the hearing supported this, reminding the EAT  that where the baby dies after the 24th week before its birth or immediately after, the woman is still entitled to take her maternity leave and this is consistent with maternity leave being for the health and wellbeing of the mother. Maternity leave can also start up to 11 weeks before the baby is born, which is inconsistent with it being there to care for a child.

EAT decision

The EAT held that this was not direct sex discrimination. Under the Pregnant Workers Directive the primary purpose of maternity leave is the health and wellbeing of the expectant and birth mother, the primary purpose of shared parental leave is to care for the child. The EU Pregnant Worker Directive was introduced under s. 118a which is the health and safety provision in the Treaty.

The correct comparator for Mr Ali was a woman on shared parental leave, and they were treated equally. Also, there is a material difference between women on maternity leave and those on shared parental leave. Maternity leave is for the health and well being of the mother, parental leave is for caring for the child.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0161_17_1104.html

Comment

This is welcome clarity for businesses which do offer enhanced schemes for women on maternity leave and will hopefully encourage companies to continue to offer such benefits, to try and encourage women back to the workplace after the birth of their child. If this decision had gone the other way then companies may have changed their enhanced maternity leave policies in order to fund additional contributions to men and women on shared parental leave. Given the current concerns, as evidenced by the gender pay gap statistics, about the positions of women in the workplace, this would have been a step backwards.