The Court of Appeal has held that it is neither discriminatory nor a breach of equal pay law to pay men (on shared parental leave) the basic statutory rate of pay, in comparison to women (on maternity leave) an enhanced or full rate of pay.
The Court, across two separate cases, found that offering different rates for shared parental leave pay and maternity pay was not;
- Direct discrimination:
The Court held that it is incorrect to use a woman on maternity leave as the comparator for a man on shared parental leave as the ‘purpose’ of maternity leave is the health and wellbeing of the mother and child following pregnancy and childbirth, whereas the purpose of shared parental leave is the care of the child only. As both men and women can take shared parental leave, the correct comparator should be a female taking shared parental leave. Therefore, the claimants were not treated less favourably than their comparators.
- Indirect discrimination:
Indirect discrimination can be justified and the law allows for special treatment for women in relation to pregnancy and childbirth. Here, the practice to pay woman on maternity leave an enhanced rate, in comparison to men on shared parental leave statutory rate, is in relation to pregnancy and childbirth (because of the differing ‘purpose’ of maternity leave) and is therefore justifiable.
- A breach of equal pay law:
The sex equality clause does not apply to provisions giving women special treatment in connection with pregnancy and childbirth.
Shared parental leave v Maternity leave
The differing purposes of shared parental leave and maternity leave proved to be a key consideration in the courts findings. The judgement is very clear that the ‘purpose’ of maternity leave (the health and wellbeing of the mother following pregnancy and childbirth) extends over the full period of leave, rather than only the compulsory two week maternity leave period; the point at which mothers are able to take shared parental leave. It is likely that this distinction will be challenged further if the Claimants are granted permission to appeal to the Supreme Court and that we will see much more debate on this distinction in the future.
Final thoughts & advice for employers
You may recall my blog in October “Shared Parental Leave: Should you pay the same rate as maternity pay?”. In light of the Court of Appeals ruling, the answer is “no”. This is good news for employers as it clarifies that shared parental leave pay does not need to be enhanced to match any enhanced maternity pay offered. On the other hand, perhaps the main reason behind a low uptake of shared parental leave is the lower rates of pay available to a father in comparison to a mother taking maternity leave at an enhanced rate. Employers may wish to consider whether they want to make shared parental leave or flexible working arrangements more accessible and ‘normal’ for men.
Posted on June 12, 2019