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It is not discriminatory for an employer to pay more for maternity leave than shared parental leave

The Employment Appeal Tribunal has released its judgement on the case of Capita Customer Management Limited v Ali. The judgement confirms that Mr Ali, who asked to take shared parental leave, was not directly discriminated against in not being entitled to the higher maternity pay rate which Capita (the employer) paid to employees taking maternity leave.

Case Facts

Mr Ali was paid in full for the two weeks' he took as paternity leave. On his return to work, Mr Ali asked to take shared parental leave to care for his new born baby. Capita informed him that he would only receive the statutory rate of pay for the shared parental leave he took. Mr Ali argued that this was direct sex discrimination as women on maternity leave received 14 weeks' full pay.

Mr Ali also argued that men taking shared parental leave should receive 12 weeks' full pay. Mr Ali accepted that the first two weeks of compulsory maternity leave could be treated differently, as they were specifically put in place for the mother to recover from childbirth.

Capita refused to enhance Mr Ali's pay and he brought a claim for direct sex discrimination.

The Employment Tribunal concluded that Mr Ali had been discriminated against. The Employment Tribunal held that Mr Ali should be entitled to the same benefits for performing the same role as that performed by a woman on maternity leave.

Capita appealed the decision.  

Employment Appeal Tribunal

The Employment Appeal Tribunal overturned the Employment Tribunal’s decision for the following reasons:

  • The purpose of shared parental leave and pay is different to the purpose of maternity leave and pay. Shared parental leave and pay is to help parents care for a child, maternity leave and pay is for the health and well-being of the mother.
  • Mr Ali’s circumstances could not be compared to that of a woman who had recently given birth and was on maternity leave.
  • The correct comparator in Mr Ali's case is a woman on shared parental leave and not a woman on maternity leave. Capita gave shared parental leave to parents of either sex on the same terms, therefore there was no discrimination. Mr Ali had been given the correct pay entitlement for shared parental leave.
  • As maternity pay is inseparably linked to the purpose and circumstances of maternity leave, it is not discriminatory for an employer to pay enhanced pay for maternity leave and not for shared parental leave.

We eagerly await the Employment Appeal Tribunal's judgement on the similar case of Hextall v Leicestershire Police, where the Employment Tribunal reached the conclusion that it was not discriminatory for an employer to pay statutory pay to partners on shared paternal leave and full pay to mothers on maternity leave. Time will tell whether the Employment Appeal Tribunal upholds the Employment Tribunal's decision in Hextall.

Our lawyers have experience in advising on all employment law issues and would be happy to discuss the steps you could take in improving your processes and how they can be implemented within your business. We also provide advice on issues arising throughout the employment relationship, including where issues lead to a claim in the employment tribunal. We have offices in London, Bristol, Exeter, Taunton, Tiverton and Plymouth.

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