The history about the employability, mobility and equality of female employees is one that often hangs on pregnancy and maternity. Whilst it is discriminatory and illegal to treat women unfavourably due to pregnancy and/or maternity, many employers wrongly perceive female employees as an absence risk, commitment or financial risk due to the fact they might become pregnant and be on maternity leave for up to a year. Essentially, the perception is that women do all the childcare.

Capita v Ali

To combat this view, the Shared Parental Leave Regulations 2014 introduced shared parental leave (SPL) in 2015 to allow parents to share maternity leave and remove the perception that women posed some form of childcare related risk to employers. Like many political policies, the idea is great on paper but ineffective in reality. Take up has been very low.

Whist male/non-birthing parents could take parental leave, many chose not to because their employer only paid enhanced maternity pay, not enhanced shared parental pay. Therefore, non-birthing parents were often at a financial disadvantage to birthing parents, meaning the right to take leave was often not taken. This could be seen as a form of sex discrimination.

Last year we covered an ET case about the issue which found it was discriminatory not to pay enhanced shared parental pay for the same length of time as enhanced maternity pay. This case has since been appealed – becoming binding precedent – and asks the question:

Is paying enhanced shared parental leave and enhanced maternity leave for different lengths of time an act of sex discrimination?

The facts of this case can be found in our previous coverage of this case. In essence, Mr Ali, the Claimant, worked for Capita, the Respondent. The Claimant and his partner had a baby. Initially his partner wanted to take maternity leave. However, she was diagnosed with post-natal depression and was advised to return to work, the Claimant would take shared parental leave instead.

The Respondent paid enhanced maternity pay for 14 weeks but only paid enhanced shared parental pay for 2 weeks. The Claimant felt this was unfair as it meant that male employees received 12 weeks less enhanced pay than mothers on maternity leave. He initiated ET proceedings.

The ET allowed the claim, it held that the purpose of maternity and shared parental leave was to care for a child. It added that shared parental leave had been introduced to allow parents a greater freedom over which parent should be the primary carer and an employer should make no assumption that women are more likely to assume this role.

The Respondent appealed and the EAT allowed the appeal. It held the ET had been wrong to say the primary purpose of maternity leave was childcare, it was primarily to enable women to make preparations for, and recovery from, birth. Therefore, maternity leave/pay is an issue of health whereas shared parental leave/pay is exclusively for childcare.

The difference of purpose meant it was not discriminatory to pay maternity pay and shared parental pay at different rates. The EAT also held that shared parental leave was available to both men and women and was paid at an equal rate to both sexes.

The takeaway point:

Yes, due to a difference of purpose, it is fair to pay maternity leave and shared parental leave at different rates. However, whilst technically correct, this decision does seem to go against the purpose of shared parental leave. However, decisions like this will do nothing to address gender equality issues and the assumption that women will continue to pose a childcare related risk to business will persist.