Nick Jones, solicitor and Head of Gregg Latchams Bristol Employment law team considers the question; should men receive enhanced shared parental leave pay?
The short answer is no.
In an eagerly awaited judgement, the Court of Appeal in the joint cases of Ali v Capita Customer Management Limited and Chief Constable of Leicestershire v Hextall resolved the question of whether employers must equalise shared parental leave pay and maternity pay.
They ruled that failure to enhance shared parental pay for men was neither sex discrimination nor a breach of equal pay legislation. The purpose behind the increased payment for women on maternity leave during the initial period was not due to facilitating childcare but rather the protection of women from the effects of pregnancy, childbirth and motherhood.
Despite the claims bought in these cases being guised as both direct and indirect discrimination as well as equal pay, the Court of Appeal held that no matter how the claim is expressed, paying women on maternity leave more is legal and just.
They expressed many reasons for their judgement, including;
- Men on parental leave and women on maternity leave are not in comparable positions for the purposes of the Equality Act 2010;
- Maternity leave is only available to birth mothers and is designed to allow them to recuperate from childbirth; and
- Statutory maternity leave is in fact compulsory whereas shared parental leave is optional.
These fundamental differences between maternity and shared parental leave mean that the claim in discrimination must fail as they are not a comparison. Enhanced pay for mothers falls under the exceptions within the Equality Act 2010, allowing for a different pay. The correct comparison to make would be of a woman and a man both taking shared parental leave, in this instance they would be paid the same.
Employers will most likely welcome this decision from the Court of Appeal as it provides clarity on the situation. We will have to wait and see whether this outcome will be appealed and also not to forget that this outcome rests on the difference between maternity leave and shared parental leave.
It is unlikely that this topic is going away any time soon, especially within the modern workplace where employees are demanding more and more that employers cater for the more flexible ways in which people chose to share the childcare.
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