Hello and, following a prolonged absence, welcome back to your case law update. Given your time and patience, this will hopefully resume the title of weekly case law update! Those of you with fantastic memories will recall our previous update was our April Newsletter which had features on NDAs and Injury to Feeling awards. Before that, our previous case law update concerned written terms and conditions of employment.
This week as reparation for the radio silence since April we have three (technically four) cases for you. More than enough to see you through a rainy week and into a deep sleep. No doubt many of you will be hoping for a swift return of incommunicado!
Our first case concerns shared parental leave and sex discrimination. It is actually a joint case where two separate claims have appealed a similar point. Therefore it technically counts as two cases. Congratulations you will soon be halfway through the update! One of the cases we have covered at both the ET and EAT level.
The questions raised in this case are:
Is it an act of direct discrimination to pay women enhanced maternity pay and pay men less enhanced/statutory shared parental pay?
Does paying parental pay as above amount to a breach of the Equal Pay Act?
In Ali the Claimant was a father who took shared parental leave after his partner returned to work early following her diagnosis with post-natal depression. However, the Claimant believed it unfair that mothers were given 14 weeks of enhanced maternity pay and fathers/partners only received 2 weeks enhanced parental pay.
He was initially successful in a claim of direct sex discrimination at ET but this was overturned in the EAT. The EAT held that there were reasons other than sex, mainly the health and wellbeing of the mother before and post-birth that meant women should not be comparators. As such it was held the difference of 12 weeks enhanced pay was not discriminatory.
In Hextall, the Claimant took shared parental leave as his wife ran her own business that could not easily facilitate her being off. Leicestershire Police, the Respondent, paid 15 weeks enhanced maternity pay but only statutory parental pay.
The Claimant was unsuccessful at ET and his appeal was rejected in the EAT. Additionally, the issue of a sex equality clause in the contract meant the issue of equal pay also arose.
Both Ali and Hextall appealed and the cases were jointly referred to the Court of Appeal. One key point of appeal was the EAT had erred in stating that the 14/15 week period of enhanced pay was solely for the health of the mother. The Claimants argued that only two weeks of the maternity period were for health with the reminder being primarily childcare.
The CoA rejected the appeal. It held that, despite there being two weeks compulsory maternity leave, the purpose of further maternity leave was not solely to do with childcare. This was in line with the Pregnant Workers Directive and Maternity and Parental Leave Regulations 1999.
Therefore, men on shared parental leave and women on maternity leave were not suitable comparators and the difference in pay was not discriminatory. For the equal pay issue, the CoA rejected the appeal. It cited Schedule 7 of the Equality Act 2010 which states that issues in relation to paternity and maternity are excluded from any implied or express term of sex equality. This included enhanced maternity pay.
The Takeaway Point:
It is neither discriminatory nor a breach of equal pay to pay women more enhanced maternity pay than men/partners would receive on shared parental pay. The reasoning here seems to be that the health of the mother justifies any differential in pay.
However, the purpose of shared parental leave is to make paternal/parental leave just as attractive as maternity leave and reduce the perceived risk of employing women of childbearing age. This will not happen if maternity pay is paid at an enhanced rate for longer than shared parental pay. As such many men/partners may be deterred from taking shared parental leave and women will continue to be viewed by some as a childcare risk.
Also, the mother in the Ali case returned to work early for health reasons. This shows that 14 weeks of maternity leave is not always best for health of the mother. This case is unlikely to be appealed but the issue of the disparity between family friendly pay could be addressed in statute later down the line. One to be filed under the things to be addressed after Brexit. A file that is vastly turning into a library!