An employer enhancing maternity pay but paying only statutory rate for Shared Parental Leave [SPL] is potentially applying an indirectly discriminatory practice that puts men at a disadvantage, an Employment Appeal Tribunal ruled today.
The case examined whether enhancing maternity pay but not shared parental pay could be indirect discrimination and whether it could be justified as a proportionate means of meeting a legitimate aim such as to encourage retention rates among women returning from maternity leave. It overturned an earlier Employment Tribunal ruling that men on SPL could never compare themselves to women on maternity leave.
The argument was that unlike new mothers who can choose to opt for SPL or stay on maternity leave and receive enhanced maternity pay, men only have the option to receive the flat rate.
The ruling made it clear that the case, Hextall vs Chief Constable Leicester Police, is not a straightforward comparison exercise and is different altogether from the comparison used in a direct discrimination claim since men on SPL are treated differently from women on maternity leave and that the case had to be considered based on individual circumstances. The EAT said that the different purposes of Maternity Leave and SPL may have to be considered.
The ruling comes after another recent direct discrimination case involving SPL when the EAT ruled that the primary purpose of the first 14 weeks of the maternity leave is about the health and recovery of the new mother and that the complainant’s circumstances on SPL were therefore not comparable. However, the judge also indicated that the purpose of maternity leave could at some point change from biological recovery from childbirth and special bonding period between mother and child, to childcare.
Working Families Chief Executive Sarah Jackson said: “Today’s decision does not alter the recent Ali v Capita judgment that men on Shared Parental Leave cannot directly compare themselves with women on maternity leave. We intervened in this case, and the Ali v Capita case, to ensure that the very special protections afforded women on maternity leave continue.
“However, today’s judgment has suggested that enhancing maternity pay, but not shared parental pay, may give rise to an indirect discrimination claim by fathers (because they do not have the choice that mothers have – to remain on higher rates of maternity pay or opt into shared parental pay).
“For employers, the question of indirect discrimination remains unresolved and we await a further tribunal decision for greater clarity. Nonetheless employers should carefully consider the aims and benefits of enhancing one sort of pay and not the other. We’d encourage employers that can afford to do so to go beyond the minimum pay for Shared Parental Leave, making it a more realistic option for more families.