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Shared parental leave: maternity leave remains special (for now)

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In a judgment handed down on Friday 24 May 2019, the Court of Appeal has upheld the decision of the Employment Appeal Tribunal (EAT) in the cases of Ali v Capita Customer Management and Hextall v Leicestershire Police, regarding the enhancement of maternity and shared parental pay.

In a judgment handed down on Friday 24 May 2019, the Court of Appeal has upheld the decision of the Employment Appeal Tribunal (EAT) in the cases of Ali v Capita Customer Management and Hextall v Leicestershire Police, regarding the enhancement of maternity and shared parental pay.

The facts

In each case, the employer offered an enhancement on statutory maternity pay (in the case of Ali during the first 14 weeks of maternity leave, and in the case of Hextall during the first 18 weeks of maternity leave), but paid men or women on shared parental leave at the statutory rate of pay only. The Court of Appeal was asked to consider Messrs Ali and Hextall's claims of direct and indirect discrimination respectively, and also considered whether Mr Hextall's claim ought to have been brought under equal pay legislation.

The key issue

The decisions turned on the question of whether a man taking shared parental leave was in materially the same circumstances as a woman taking maternity leave, and whether a valid comparison between them could therefore be drawn for the purposes of founding a discrimination claim.

The Court of Appeal agreed with the EAT that the purpose of the first 14 weeks of maternity leave, enshrined in EU law, was primarily to protect the health and safety of pregnant women and new mothers. In this regard, it considered it distinguishable from shared parental leave, held to serve the primary purpose of allowing parents to make flexible arrangements to care for their child. It was therefore not possible to draw a comparison between a man taking shared parental leave and a woman taking the first 14 weeks of her maternity leave. Discrimination claims from male employees (founded on this comparison in one sense or another) must therefore fail. It is worth noting that the Court of Appeal left the door ajar for a comparison to be made between a man taking shared parental leave and a woman taking maternity leave outside the initial 14-week period.

Implications of the decision

The decision will come as a relief to the majority of employers who offer generous enhancements on statutory maternity pay unmatched by enhanced shared parental pay policies, and for campaigners who feared that a contrary decision would lead to a "levelling down" of benefits currently offered to women. Further, women who have given birth may agree wholeheartedly that their position cannot be compared to their partners' (however supportive or otherwise they may be). Women may recover from the physical and mental strain of childbirth at very different rates, and it does not seem inappropriate to leave the decision of when the nature of that leave changes from leave required for health and safety reasons and leave to allow them to offer childcare to the women themselves.

For now, employers do not need to make changes to their family friendly rights policies, although further case law developments based on a comparison with a woman at a later point in her maternity leave should not be ruled out. We also do not rule out further legislative action in this area: take-up of shared parental leave remains poor, and this judgment will do nothing to address that issue. The voluntary enhancement of shared parental pay by employers is still unusual with a few prominent exceptions. It is difficult to see the current Government introducing any measure that might create, or be perceived to create, additional burdens on business. However, the issue will not go away. So long as there is no financial incentive for parents to equitably distribute childcare burdens there will inevitably be an impact on the career progression of mothers, and we do not expect to see the kind of cultural shift needed to ensure the equal representation of women in the upper echelons of the workplace. A bold and creative solution from Government will be necessary to square the circle, but for now it remains a watching brief.

Co-Authored by Hannah Disselbeck

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Employment