Supreme Court refuse shared parental pay appeal
A highly anticipated test case over whether it is discriminatory to pay more to women on maternity leave than men and woman taking shared parental leave will not be heard by the Supreme Court.
The cases Ali v Capita and Hextall v Chief Constable of Leicestershire Police concerned the difference in pay offered to woman on maternity leave and those taking shared parental leave. Both cases share similar facts and resulted in the same ruling in that it is not discriminatory to offer woman on maternity leave an enhanced rate of pay whilst not offering the same enhancement to the shared parental leave rate of pay.
Ali v Capita
Woman working for Capita are entitled to maternity pay of up to 39 weeks – the first 14 at full pay with the remaining 25 on statutory maternity pay. Due to the mother of his child suffering from post-natal depression Mr Ali had to use his shared parental leave entitlement to look after the child.
He was only paid statutory parental leave pay during the same period of time, the first 14 weeks, in which a mother would have received full pay. Mr Ali argued this was direct discrimination based on his gender.
The Court of Appeal disagreed, stating the arguments amounted to an “attack against the whole statutory scheme” for woman on maternity leave. The judge also stated that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare” and made reference to the fact this time is for the mother to recuperate from childbirth and bonding with the child.
Hextall v Chief Constable of Leicestershire Police
This case shares similar facts in that women on maternity pay are paid an enhanced rate but those taking shared parental leave do not enjoy such enhancements. Unlike Ali, Hextall argued that this was indirect sex discrimination presumably as men are more likely to use shared parental leave than women, but this claim also failed.
The Court of Appeal found that the basis of this case formed more of a claim for inequality of pay rather than indirect discrimination. Hextall argued that as the Equality Act 2010 incorporates a sex equality clause into all contracts of employment this should extend to him being paid an equal rate of pay on shared parental leave as a female colleague is entitled to receive on maternity leave. For completeness the judge stated such a claim would not enjoy any prospect of success as like the previous case the comparison of a person on shared parental leave and a woman on maternity leave is the wrong comparison to make.
The Court of Appeal’s decision is clear that men taking shared parental leave should not be compared to women taking maternity leave. The correct approach is to compare men taking shared parental leave with women taking shared parental leave.
The significance of the Supreme Court rejecting an appeal means that the Court of Appeal rulings in these cases are final and binding.
In summary, the decision confirms that it is not discriminatory for maternity leave and pay to be more generous than shared parental leave and pay.
GA Solicitors has a dedicated employment department who can provide advice and assistance revolving around maternity pay and shared parental leave pay. If you would like to discuss any of the issues raised in this article please do not hesitate to contact Rob Zacal on 01752 513549 or email@example.com.