Case law: Court considers whether it is lawful to pay fathers less than mothers if they take shared parental leave

Employers offering enhanced contractual maternity pay to mothers should consider also giving enhanced pay to fathers in the event of a couple choosing to take shared parental leave, or risk a direct or indirect discrimination claim.

Please note: A newer article on this case was published in the June 2018 edition of Legal Alert following subsequent developments in the legal process.

UK maternity rules say employees who give birth must take two weeks’ compulsory leave (or four for factory workers) following the birth. If they meet certain conditions, they are entitled to a further 50 weeks’ leave, 37 of them on statutory pay.

However, once her compulsory leave is over, the employee can choose to bring her maternity leave to an end and instead she and the father (or her spouse, civil partner or partner in an enduring long-term relationship who shares responsibility for the child) can take shared parental leave – where they apportion the leave between them, provided the total taken does not exceed the permitted maximum. The couple then share statutory shared parental pay.

In one case, however, an employer operated a scheme which gave mothers enhanced pay during maternity leave, for their two weeks compulsory leave and a further 12 weeks. When a male employee who was a new father went on shared parental leave and discovered that he would only receive statutory pay during his leave – which was a lot less than a mother on enhanced paternity pay received - he claimed sex discrimination.

UK law on maternity leave is based on an EU Directive. The Employment Appeal Tribunal said it was clear that, under the Directive, the purpose of maternity leave was not to give a mother time to care for her child, it was to protect her health and wellbeing because she has given birth. Maternity payments to mothers are inextricably linked to this purpose. Fathers, who do not physically give birth and whose health and wellbeing are not therefore affected in the same way, cannot argue they are entitled to comparable payments.

The purpose of shared parental leave is different. It is to allow for care of the child. Men and women are equally capable of providing childcare and are therefore entitled to the same shared parental leave rights as each other. Therefore, the fact a woman may be entitled to more pay when on maternity leave than a father gets under the shared parental leave rules is not direct sex discrimination against the father.

This is consistent with the government's view that there is no legal requirement for employers to offer corresponding enhancements to shared parental pay.

However, the relevant EU Directive only requires member states to give maternity leave to mothers for 14 weeks. It is therefore arguable that the principle that maternity leave is to protect the mother’s health and wellbeing only applies for the first 14 weeks of her maternity leave. It is open to a father to argue that, if a member state chooses to provide more than 14 weeks maternity leave, the excess over 14 weeks is for childcare purposes.

He might then argue that he is just as capable of providing childcare as the mother, and should therefore receive the same pay as her for doing that job.

By coincidence, the period for which the father in this case was claiming he should be paid as much under the shared parental leave rules as the mother would have received under her employer’s enhanced scheme was 14 weeks.

It is therefore possible that he might have had a claim for direct or indirect sex discrimination had he been on shared parental leave for more than 14 weeks and been paid less than the mother during the excess. However, it is doubtful a direct discrimination claim would succeed because the correct comparator would be a female partner of the mother, and she would not be entitled to enhanced pay when on shared parental leave either. An employer faced with a claim for indirect sex discrimination would need to how it was a proportionate means of achieving a legitimate aim – ie it was objectively justified.

The same argument could possibly be made for periods exceeding 26 weeks on grounds that is the UK period of Ordinary (as opposed to Additional) Maternity Leave.

Of course, it is open to employers to also offer enhanced shared parental leave and/or pay, if they wish.

Acas has published a Good Practice Guide for employers and there is a government guide and calculator too.

Operative date

• Now

Recommendation

• Employers offering enhanced contractual maternity pay to mothers should consider giving enhanced pay to fathers too in the event of a couple choosing to take shared parental leave, or risk a direct or indirect discrimination claim.
• They should also check out the government Technical Guide, the government calculator and the Acas Good Practice Guide.

Case ref: Capita Customer Management Ltd v 1) Mr M Ali 2) Working Families (Intervenor): UKEAT/0161/17/BA