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Case law: Courts consider whether it is discriminatory to pay fathers on shared parental leave less than mothers on maternity leave

Employers offering enhanced contractual maternity pay to mothers should consider also giving enhanced pay to fathers taking shared parental leave, or risk a direct or indirect discrimination claim, following two recent rulings.

June 2018

This update was published in Legal Alert - June 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Employees who give birth must, by law, take two weeks' compulsory leave (four weeks 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.

Once her compulsory leave is over, she can choose to bring her maternity leave to an end and she and the father (or her spouse, civil partner or long-term partner who shares responsibility for the child) can take shared parental leave instead –apportioning the leave between them – provided the total taken does not exceed the permitted maximum. Each party receives statutory shared parental pay.

In a recent direct sex discrimination claim, an employer operated a scheme giving mothers enhanced pay during maternity leave, for their two weeks' compulsory leave and a further 12 weeks – a total of 14 weeks. Such schemes are fairly common. A male employee (a new father) went on shared parental leave and discovered he would only receive statutory pay during his 14 weeks' leave – a lot less than a mother on enhanced paternity pay received. He claimed direct sex discrimination.

UK law on maternity leave is based on an EU Directive which requires member states to give maternity leave to mothers for 14 weeks (although the UK has 'gold-plated' the Directive and provides for a longer period). The Employment Appeal Tribunal (EAT) 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, but to protect her health and wellbeing because she has given birth. Maternity payments to mothers are inextricably linked to this purpose. Fathers are not therefore affected in the same way, and cannot argue they are entitled to comparable payments.

The purpose of shared parental leave is different – to allow for childcare. Men and women are equally capable of providing childcare and are therefore entitled to the same shared parental leave rights as each other. This means 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 if they offer enhanced maternity pay.

The EAT therefore ruled that the failure to pay the father enhanced pay while he was on shared parental leave was not direct sex discrimination.

However, the EU rules 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. This leaves it 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.

However, this was not open to the father in this case as, by coincidence, the period for which he was claiming the same pay as a mother on maternity leave was 14 weeks. The same argument could be made for periods exceeding 26 weeks on grounds that this is the UK period of Ordinary Maternity Leave.

Of course, employers who offer enhanced maternity pay could also offer enhanced shared parental leave and/or pay, if they wish.

Indirect discrimination?

In another case an – indirect sex discrimination claim – an employer paid 18 weeks' enhanced maternity pay to mothers on maternity leave, but only paid statutory pay to mothers and fathers taking shared parental leave. A male employee took 14 weeks' shared parental leave in circumstances where, had he been female and on maternity leave, he would have received full pay. He appealed against the Employment Tribunal (ET) finding that there had been no indirect sex discrimination.

It is indirect discrimination if an employer operates a provision, criterion or practice (PCP) such as a work policy which puts a group of employees (including the employee who is complaining about it) who share a protected characteristic – in this case, their male sex – at a disadvantage compared with people who do not share that characteristic.

However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim. An employer who can show there were legitimate reasons for the requirement, which could not be achieved through less discriminatory means, will not therefore be acting unlawfully.

The PCP in this case was that parents taking shared parental leave only received statutory pay. The ET ruled that as men and women on shared parental leave were paid the same, men were not disadvantaged. The real reason for men's disadvantage was not the PCP but the fact men could not get pregnant.

The Employment Appeal Tribunal (EAT) took issue with this. It said the whole point of indirect sex discrimination laws was to require employers to consider whether men might in fact be disadvantaged by rules that apparently treat men and women the same. It remitted the case to a different ET to reconsider.

The EAT's view was that the potential disadvantage to the male employee was the fact that a man's only choice was to take shared parental leave, whereas a woman could choose between maternity pay and shared parental leave. This meant that a man was ‘proportionately less likely to be able to benefit from an equivalent rate of pay when taking leave to act as the primary carer for his child to that received by a woman on maternity leave’. This disadvantaged fathers because they would be deterred from taking leave, compared to mothers.

It also directed that the pool of people to be compared with each other for these purposes should include employees who have a present or future interest in taking leave to look after a new-born child.

This relates back to the comments in the first case (above), that the purpose of maternity leave under the EU rules, for the first 14 weeks after the birth, is the mother's health and wellbeing – and not to look after the new-born child. This leaves open the possibility that some women – those on their first 14 weeks of maternity leave – should be in the pool, while others should not.

The EAT also suggested that the issue of the different benefits enjoyed by women on maternity leave, and men on shared parental leave, should only be considered as part of the question of whether there was an objective justification for the indirect discrimination. This implies that this difference did not go to the heart of whether there was discrimination in the first place.

As yet, the ET has not reconsidered this case, so uncertainty remains whether a discrepancy between what a mother on maternity pay receives, and what men on shared parental leave receive, is discriminatory or not.

Operative date

  • Now

Recommendation

  • Employers offering enhanced contractual maternity pay to mothers should consider giving enhanced pay to fathers in the event a couple choose to take shared parental leave, or risk a direct or indirect discrimination claim
  • If they do not give fathers enhanced pay, they should identify their reasons (which may be different in relation to the first 14 and/or 26 weeks after childbirth, and thereafter) as to why this is a proportionate means of achieving a legitimate aim (such as mothers' health and wellbeing, and encouraging recruitment and retention of female employees), and record those reasons
  • They should also check out the Government Technical Guide

Case refs: Capita Customer Management Ltd v Ali UKEAT/0161/17/BAHextall v Chief Constable of Leicestershire Police UKEAT/0139/17/DA

Please note: An article published in the May 2018 edition of Legal Alert covered this case at an earlier stage in the legal process.

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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