The Employment Appeal Tribunal (“EAT”)  has decided that failure to pay a male employee enhanced shared parental pay where the employer pays enhanced maternity pay to women was not direct sex discrimination.

In the case of Capita Customer Management Ltd v Ali, the court overturned the Tribunal’s decision which had found the male employee had been discriminated against. He compared himself against a woman on maternity leave.

In this case, female employees were entitled to maternity pay of 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay (SMP). Male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which ‘may or may not be paid’. After his daughter was born the claimant took two weeks’ paid leave. He was informed that he was eligible for shared parental leave (SPL) but would only be paid at the much lower statutory shared parental pay rate.

He argued maternity leave was about care for a child in the same way as shared parental leave. The EAT didn’t agree.

The EAT held that the purpose of shared parental leave is different to maternity leave. The main purpose of the Pregnant Workers Directive (which underpins UK legislation) is the health and wellbeing of the pregnant and birth mother, and provides for minimum of 14 weeks’ maternity leave paid at least at the same level as statutory sick pay. The Parental Leave Directive is concerned with the care of the child and makes no provision for pay.

The correct comparator for the Claimant in this case was a woman on shared parental leave – not one on maternity leave, and in this case she would have been treated equally in terms of leave and pay. In any event, the more favourable treatment given to women on maternity leave was rendered lawful by section 13(6)(b) of the Equality Act 2010.

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