Discrimination and Shared Parental Leave Pay

Guest article kindly supplied by KLC Employment Law.

In the case of Ali v Capita Customer Management Limited the ET found that Mr Ali had suffered direct sex discrimination when his employer, Capital Customer Management Limited (CCML) gave enhanced maternity pay to female employees but would not give enhanced Shared Parental Leave pay to him for the 12 weeks after the compulsory maternity leave period.  Mr Ali’s case was that after the first 2 weeks of compulsory maternity leave there was no difference between him and a female member of staff.  CCML appealed to the EAT.

In April 2018 the EAT overturned the decision of the ET setting out that it had “failed to consider or have regard to the purpose of maternity leave with pay…which is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth” and had therefore erred in considering that the circumstances of Mr Ali were comparable with those of a woman who had recently given birth as both had leave to care for their child.

This appeal was linked to the case of Hextall v The Chief Constable of Leicestershire Police (CCLP)in which a different ET decided that there was no discrimination where Hextall was not paid enhanced pay during Shared Parental Leave.  The appeal in this case was heard in early May and as a result the case has been sent back to a new ET to decide whether CCLP’s policy of enhancing maternity pay for the first 18 weeks, but only paying SPL at statutory rates, amounted to indirect sex discrimination.

Mr Hextall arguably has a greater chance of success than Mr Ali because clearly only receiving statutory pay whilst on Shared Parental Leave has a detrimental impact on more men than women, so will the CCLP be able to objectively justify their policy? We’ll let you know what the ET decides, although that is unlikely to be the end of it!