Legal Issues – Family leave and discrimination


We issued an update in 2017 looking at whether enhancing maternity pay but not pay for other forms of family leave was discriminatory. At that time, in Ali v Capita Customer Management Limited, Mr Ali successfully claimed direct discrimination when his employer paid him only the statutory rate of shared parental pay when it would have paid his wife enhanced maternity pay.

As a general rule, a man cannot successfully claim sex discrimination if the less favourable treatment is connected to pregnancy and childbirth, as any time where an employee is pregnant or on maternity leave is subject to special protections in law. However, in Ali the Employment Tribunal (ET) stated that the aforementioned protections needn’t be applied after the compulsory maternity leave period, which is two weeks for general workers and four weeks for factory workers.

Around the same time, in the similar case of Hextall v Leicestershire Police, Mr Hextall’s direct and indirect discrimination claims failed, with the ET finding that the special protections afforded to pregnancy and maternity would apply beyond the compulsory two (or four) week compulsory period of maternity leave.

We then issued a second update on Ali last year. The Employment Appeal Tribunal (EAT) in that case decided that the ET was incorrect in stating that the special maternity protections applied only to the first two or four weeks of maternity leave as outlined above.

The EAT stated that maternity leave is not primarily for childcare purposes, but is designed to protect the health of the mother following childbirth, meaning that it cannot be compared to shared parental leave (SPL), which is primarily related to childcare. The EAT therefore agreed with the ET’s original decision in Hextall.

However, around a month later, the EAT heard the Hextall appeal in relation to indirect discrimination. The EAT stated that the ET in the original hearing had applied the wrong test when deciding whether Mr Hextall had been indirectly discriminated against. The technical argument in that appeal doesn’t need to be considered for this article, but suffice to say that there was some confusion following those two closely-linked decisions, with no real answer in relation to whether a man could claim indirect discrimination in these circumstances.

Recent decision

The Court of Appeal (CA) has now heard the appeals against both EAT decisions, in a combined case, and has given the clarity that has been sorely needed on this issue. In essence, the CA has decided that allowing different pay rates for maternity leave against other forms of family leave is not directly or indirectly discriminatory, and is also not a breach of equal pay legislation.

The CA said that Mr Ali’s circumstances were materially different from those of someone taking maternity leave, and repeated the earlier stance that the entirety of maternity leave (and not only the compulsory leave period) is to help the mother to recover from pregnancy and childbirth.

In a direct discrimination claim, the correct comparator when deciding on direct discrimination would be a woman taking SPL, and as a woman on SPL would receive the same as Mr Ali received, there was no less favourable treatment.

In relation to Hextall, the CA stated it was not possible for Mr Hextall to bring his claim as it was essentially an equal pay claim, and the law allows a difference in pay in relation to maternity leave. While it therefore didn’t need to decide on his claim, the CA went to say that it would have rejected it anyway because there was no valid comparison between Mr Hextall and a new mother given the special protections afforded to the latter.

What does this mean?

This decision is no doubt good news for women, particularly those whose employers may have been considering scrapping enhanced maternity pay following the earlier decisions. Employers are now under no obligation to consider enhancing pay for SPL or other forms of leave, as the CA has stated that maternity leave cannot be compared to those forms.

Of course, while there is legal protection in enhancing only maternity pay, employers should keep in mind that other issues could arise from a lack of parity in pay for family leave. Resentment can appear when different groups receive different benefits, and talent could be drawn elsewhere, and as such employers may still wish to consider whether it would be best to offer some form of enhancement to other family pay too.

As a final point, while we have clarity on this issue now, it should be borne in mind that both claimants are seeking leave to appeal to the Supreme Court. It is therefore possible for the above to change, so watch this space.

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

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