Enhancing maternity pay ‘is not discriminatory’

The Court of Appeal has ruled that enhancing maternity pay but not shared parental pay is not discriminatory.

Maternity Leave Letter - pregnant mum working on a laptop

Once you have decided when you take maternity leave, you will have to send a letter to your employer

The Court of Appeal has ruled that it is not discriminatory for employers to enhance maternity pay while not enhancing shared parental pay.

The ruling involved two cases, Ali v Capita and Hextall v Chief Constable of Leicestershire Police, and was unanimous.

In the Ali v Capita case the judges ruled that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare” – it involves helping women prepare for the later stages of pregnancy, recuperate from giving birth, bond with their child and breastfeed and care for their babies. Shared parental leave, however, was more about children and the best comparator was a woman on shared parental leave rather than a  woman on enhanced maternity leave.

In the Hextall case, the judges ruled that shared parental leave is not comparable with maternity leave.

The court did not give a judgment on when maternity leave switches from being about the mother’s health to being about childcare, but suggested that this would be at least 14 weeks or longer if the woman was breastfeeding for the recommended six-month period. Working Families have argued that 26 weeks might be appropriate to protect the rights of mothers.

Working Families chief executive Jane van Zyl said: “The distinct disadvantage that women face in the workplace having experienced pregnancy and childbirth must continue to be recognised in law.”

She added that the organisation would continue to campaign for well paid standalone paternity leave for dads and for employers who can afford to do so to enhance shared parental leave.

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