In the case of Capita Customer Management v Ali, the employment appeal tribunal (EAT) overturned a decision made last year that it was discriminatory to allow a new father on Shared Parental Leave (SPL) only flat rate pay when mothers were offered enhanced maternity pay. This week a further EAT decision considered indirect discrimination. So where does this leave us on the vexed question of enhancing SPL?
Is it discrimination if an employer enhances maternity pay but not Shared Parental Pay (ShPP)?
Ali argued that his employer discriminated against him when he was not offered enhanced pay on SPL, whereas a female employee on maternity leave received enhanced maternity pay. In the first instance the tribunal agreed that this was direct sex discrimination, and that the failure to enhance ShPP had deterred Ali from taking leave.
Why Working Families intervened in both cases
If the EAT had found in favour of Ali it could have set a dangerous precedent for pregnant women and women returning from maternity leave. We were particularly concerned by the first instance tribunal’s findings that it 'was not clear why any exclusivity' should apply to women beyond the first two weeks of compulsory maternity leave. The implications of this decision for women, and for employers, are far reaching. We argued in our intervention that there were risks to women, and employers, of upholding a direct discrimination complaint.
For women we argued that maternity leave can’t simply be equated with childcare. It has a very important purpose of allowing women to recover from the physical experience of childbirth – something unique to women – and to bond with their new baby (for example during breastfeeding). If maternity leave is no more than 'childcare' that can be carried out by either parent, then mothers may come under pressure from employers or partners to return sooner than they would wish. We argued that there is a material difference between a woman who has given birth and other employees, and that reducing the protection to only two weeks would be a retrograde step.
For employers the guidance had always been that maternity pay is for the protected period of maternity leave and employers can enhance for this period, without having to mirror their enhancements for any ShPP. Occupational maternity pay schemes would be at risk if all employers now needed to equalise their ShPP schemes – and an overall levelling down of pay for women likely. This won’t help address an already gaping gender pay gap, and it may force some women to return to work sooner than they would like, which will not always be in the best interests of either family or employer.
The EAT’s finding
The EAT agreed with Working Families, set aside the finding of direct discrimination and said that there is a material difference between maternity leave and SPL – concluding that they are for different purposes, and the amount of pay is directly linked to the type of leave. The EAT said, for direct discrimination, the correct comparator for a man on SPL is a woman on SPL, at least for the first 14 weeks under consideration.
The new finding on indirect discrimination
In a separate case Hextall v Chief Constable Leicestershire Police, considered by the same judge, the EAT looked at whether failing to enhance SPL could be indirectly discriminatory against men (because they do not have the choice that mothers have – to remain on higher rates of maternity pay or opt into ShPP).
The EAT found that the first tribunal had erred by using the same logic that if no comparison with a woman on maternity leave was permitted, there could be no indirect discrimination either. The EAT disagreed and said that the comparison for indirect discrimination is altogether different from a direct claim. The correct comparators will depend on individual circumstances, but the potential claim should not be ruled out. The EAT said that the different purposes of maternity leave and SPL may have to be considered, and employers may in any case be able to justify an indirect discrimination claim if they can show that they are acting proportionately and have a legitimate aim. The case has been remitted to another tribunal to determine.
Where does this leave fathers?
Encouraging more men to share care of their children in those early days is key to their ongoing involvement, and access to well-paid leave early on is crucial. We have long campaigned for improved pay, and for extended independent leave rights for fathers. We encourage all our employer members to enhance their ShPP if they can afford to, as this is the best way to ensure more fathers use it. We’d like to see family caring responsibilities – both for children and eldercare – as a new protected characteristic in equality law. But we don’t think discrimination law should allow men on SPL to say that they are in the same position as women on maternity leave, at least for the initial period of leave that is to recover from childbirth. There’s no reason the special protection for mothers can’t go hand-in-hand with better rights for fathers; it is not a zero-sum game.
Where does this leave employers?
For now it means that they do not directly discriminate against fathers if they don’t enhance their ShPP to match their maternity pay. But it isn’t entirely clear whether this applies beyond 14 weeks (which was the issue under discussion in the Ali case). And until we hear from the next tribunal, the possibility of an indirect sex discrimination claim survives; although employers may be able to justify enhancing only maternity pay (for example, to encourage high retention rates among maternity returners).
Our advice to employers continues to be, whatever the legal niceties, that it is best practice to enhance your ShPP. This sends a very positive message to fathers about the value you place on them in the workplace, and about your commitment to gender equality.
Liz Gardiner is legal rights advisor at Working Families