Is it discriminatory to offer your female staff enhanced maternity pay but to not offer the same enhanced terms to your male employees taking shared parental leave?

A recent Court of Appeal decision on a number of cases (including Ali v Capita Customer Management Ltd) ruled that there was no discrimination on the part of an employer against male employees who were paid less on taking shared parental leave when compared with female employees on maternity leave.

In Ali and the related cases, the male claimants alleged discrimination on the grounds that they only received statutory pay whilst on shared parental leave whilst women received enhanced pay on maternity leave.

The Court found that the two forms of leave were not comparable; parental leave is for childcare purposes whereas maternity leave attracts special treatment as it relates to the health and safety of the woman who has given birth. If the two types of leave are not equivalent, then there can be no direct discrimination and by the same reasoning there was found to be no indirect discrimination.

The decision in these cases does not upset the existing status quo. Employers can continue to offer enhanced maternity pay whilst only offering the statutory minimum for shared parental leave for men. However, the cases do draw attention to an increasingly common complaint which is that new mothers receive beneficial treatment as compared to new fathers.

The issue is not just raised by wishful-thinking men hoping for some extra paid leave, there is a legitimate case to be made that bolstering such leave provisions could help improve gender equality, as well as improving health and well-being in the workplace. It has been suggested that employers would be less likely to discriminate against women if men were to routinely take equivalent parental leave on becoming a new parent.

The EAT’s decision appears to ignore the fact that whilst the initial two week period post birth is legislated to give protection to the mother’s health, it cannot be said that leave thereafter is about anything other than childcare.

Also, whilst the main carer in an adoption scenario receives statutory leave and pay equivalent to maternity leave and pay, there is no two week protected period post adoption in the same way as post birth.

It is therefore difficult to see how the EAT could conclude that maternity leave taken by mothers, which is equivalent to adoption leave, is not comparable to shared parental leave taken by fathers – all three appear to be, at least primarily, about childcare.

If you require assistance with any of the above matters, please contact David Greenhalgh of the Joelson employment team on +44(0)20 7580 5721.

This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.