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Shared Parental Leave: Men do not (always) have to be paid the same as women

The Employment Appeal Tribunal (EAT) has given judgment this week in an eagerly awaited discrimination case regarding the enhancement of maternity and shared parental pay.

The Employment Appeal Tribunal (EAT) has given judgment this week in an eagerly awaited discrimination case regarding the enhancement of maternity and shared parental pay.

The headline from Capita Customer Management v Ali is that the decision of the Employment Tribunal has been overturned, and Mr Ali does not have to receive as much pay for his shared parental leave as would a woman on maternity leave. This will come as a relief to many employers who have generous enhanced provisions for maternity pay.

However, the case is unlikely to be the final word on the subject. Capita offered maternity pay for only the first 14 weeks of maternity leave, and it was this period of leave with which Mr Ali sought to make his comparison. The 14 week period is the minimum period of maternity leave required by European law, and has been accorded special status by the European Court of Justice.

The EAT left open the question of a man on shared parental leave who seeks to compare himself with a woman at a later stage of her maternity leave. The UK offers far more maternity leave than the European law minimum and the charity Working Families, intervening in the case, submitted that the policy arguments for a difference in pay might become less compelling several months after a child is born, a submission which met with the approval of the EAT. There is a strong chance of an appeal to the Court of Appeal, and a real possibility that another case, with slightly different facts, will produce a different result.

There might also be a change of government policy. Take up of shared parental leave has been reported to be as low as 2% nationally, and campaigners and backbench MPs have pressed the government to replace it with an extended period of paid paternity leave, which is common in Scandinavian countries.

Many of the employers who can afford it have already prepared themselves for this possibility, and made themselves more attractive to employees, by offering generous family friendly leave to both women and men. Others have made changes to address wider issues such as gender pay, and in particular the gender pay gap, to ensure that they have a more effective policy on shared parental leave.

But in those sectors where money is tight, the main practical consequence of this judgment is not to panic, at least not yet. The immediate conclusion from the case is that differences between maternity pay and shared parental pay remain lawful, for now, and there is no legal obligation to change them. But employers are advised to watch for further developments.

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