Remember the case of Ali v Capita Customer Management Ltd…Mr Ali claimed it was discriminatory of Capita not to pay men enhanced shared parental pay when women received enhanced maternity pay. You can read the summary here. Basically, he lost at the Employment Appeal Tribunal. Unhappy with the decision, Mr Ali appealed. The case has just been decided by the Court of Appeal.

What did the court decide?

The Court of Appeal decided it was not discriminatory. Why?

Direct Discrimination 

The law gives “special treatment afforded to a woman in connection with pregnancy or childbirth“. this exception is wide enough to include enhanced maternity pay.

Men on parental leave and women on maternity leave are therefore not in comparable positions for the purposes of Equality Act 2010…so the direct discrimination claim failed.

Equal Pay 

A  difference in shared parental leave pay between men and enhanced maternity pay for women should be characterised as an equal pay claim.

The Equality Act 2010, however, provides that the sex equality clause implied into contracts of employment does not apply where discrimination is specifically excluded. Special treatment for women is permitted in connection with pregnancy or childbirth

For the same reasons as direct discrimination, that is wide enough to include enhanced maternity pay. As a result, there is no claim for equal pay.

Indirect discrimination 

Could there have been indirect discrimination? No.

There is a specific exclusion for indirect discrimination claims where they would be equal pay claims except for a specific exception. The exception for equal pay therefore means that and indirect discrimination claim cannot be brought either.

The end result is that all of the Claimants’ grounds of appeal were dismissed.

You can read the Court of Appeal judgement here.

FREE first advice

Have you ever wanted to just ask an expert employment law solicitor if they can help you, without worrying about what it may cost to contact them?

Get in touch

We’d like to talk to you to see what we can do to help, so please either call us anytime for free on 08000 614 631, email us or use the form below.

Together we can work out what your next steps might confidence, at no cost and with no obligation.


* indicates required
McCabe and Co Solicitors will use the information you provide on this form to be in touch with you and to provide updates and marketing. Please let us know all the ways you would like to hear from us:
You can change your mind at any time by clicking the unsubscribe link in the footer of any email you receive from us, or by contacting us at We will treat your information with respect. For more information about our privacy practices please visit our website. By clicking below, you agree that we may process your information in accordance with these terms.
We use Mailchimp as our marketing platform. By clicking below to subscribe, you acknowledge that your information will be transferred to Mailchimp for processing. Learn more about Mailchimp's privacy practices here.