13th April 2018

Legal Issues – Family leave and discrimination


In June 2017 we reported on the case of Ali v Capita Customer Management Limited, in which Mr Ali’s employer paid enhanced maternity pay but only the statutory rate of pay for Shared Parental Leave (SPL). As Mr Ali would not receive the same benefits as his wife, he claimed both direct and indirect discrimination.

Direct discrimination occurs when an employee is treated less favourably than others because of a Protected Characteristic (PC) such as that employee’s gender, sexual orientation or disability.

Indirect discrimination occurs when a rule is applied to everyone but it puts a group with a PC at a particular disadvantage. An example is where the employer does not allow part-time working, as such a rule puts women at a disadvantage given that they tend to have a greater need to work part-time.

An important factor in Mr Ali’s case related to the protections afforded to pregnancy and maternity under the Equality Act (EA) 2010, namely that in general terms a man cannot successfully claim sex discrimination if the less favourable treatment is connected to pregnancy and childbirth.

In spite of that, Mr Ali was successful in his direct sex discrimination claim, as the Employment Tribunal (ET) stated that the aforementioned protections needn’t be applied after the compulsory maternity leave period. That period is generally the first two weeks of maternity leave, or the first four for factory workers.

His indirect sex discrimination claim failed, as the employer’s policy did not apply equally to everyone; it very clearly outlined differences in treatment between men and women.

Conversely, the case of Hextall v Leicestershire Police, with similar facts, was decided differently around the same time. In that case, Mr Hextall’s claims of direct and discrimination failed, primarily on the ET’s reasoning that the special protections afforded to pregnancy and maternity would apply beyond the compulsory two (or four) week period of maternity leave.

Recent decision

Conflicting decisions on similar facts are never helpful (to lawyers, never mind employers), but Capita appealed the finding of direct discrimination and the Employment Appeal Tribunal (EAT) has delivered its verdict.

The EAT has disagreed with the earlier decision, finding that the ET erred in concluding that the special protections needn’t be applied after compulsory maternity leave. The EAT went on to state that maternity leave is not primarily for childcare purposes, but is designed to protect the health of the mother following childbirth, meaning that it is not analogous to SPL.

As such, a man cannot compare himself to a woman for the purposes of a sex discrimination claim, and the EAT’s decision agrees with Hextall.

What does this mean?

It is not uncommon for employers to offer enhancements for maternity pay but not for other forms of family leave, whether to attract and retain women (as seen in Shuter v Ford) or simply for cost-saving purposes. The EAT’s decision in Ali is likely to be welcomed by such employers, who can now argue that such a policy decision is protected in law.

However, we still encourage employers to consider what enhancements they offer and whether they wish to address inequalities, as there can be other consequences of treating employees differently outside of the ET. For example, when employees are aware that their benefits are widely divergent, it rarely promotes a collegiate environment, and resentment can lead to employee relations issues.

In addition, the purpose of SPL is to allow caring responsibility to be shared between the mother and her partner. However, if the woman enjoys several months’ full pay but her partner earns only £145 per week, that will generally be a disincentive for the partner to take SPL. As such, employers offering pay differentials for family leave are unlikely to viewed favourably by all, and a policy that benefits one group can just as easily discourage applicants or lead to attrition from another.

If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.

13th April 2018