Case law: Paying fathers on shared parental leave less than mothers on maternity leave is not discrimination – at least, if the shared parental leave is only for 14 weeks

Employers offering enhanced contractual maternity pay to mothers are not guilty of direct or indirect discrimination or of breaching equal pay rules, if they fail to give enhanced pay to fathers taking shared parental leave as well, the Court of Appeal has ruled.

UK law on maternity leave is based on an EU Directive requiring member states to give maternity leave to mothers for 14 weeks. However, the UK has improved upon the 14 weeks specified in the Directive - ‘gold-plating’ it by providing for a longer period of maternity leave. The UK rules actually say that employees who give birth must take two weeks’ compulsory leave (or four for factory workers) following the birth. They are also entitled to a further 50 weeks’ leave, 37 of them on the flat rate of statutory pay, if they meet certain conditions.

However, once her two weeks’ compulsory leave is over a mother can choose to bring her maternity leave to an end. Instead, she and the father (or spouse, civil partner or long-term partner) can choose to:

• take shared parental leave for all or any of the remaining 50 weeks' statutory leave; and
• share the 37 weeks’ flat statutory pay for shared parental leave (currently £148.68 per week) between them.

However, it is open to employers to provide enhanced pay, over and above the flat statutory rate, during both maternity leave and shared parental leave. If an employer does offer enhanced pay during shared parental leave, the same rate must be paid to everyone eligible to take it, irrespective of their gender.

In a recent direct sex discrimination claim, an employer operated a scheme which gave mothers enhanced pay (their full pay, in fact) for their two weeks compulsory leave and then for a further 12 weeks (a total of 14 weeks). After that, they received statutory maternity pay. Such schemes are fairly common.

However, the employer only offered the flat rate of statutory pay to men and women on shared parental leave.

When a male employee - a new father - went on shared parental leave and discovered that he would only receive the flat rate of statutory pay during his 14 weeks’ leave – which was a lot less than a mother on enhanced maternity pay received - he claimed direct sex discrimination.

The Employment Appeal Tribunal (EAT) said it was clear that the Directive’s 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 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.

In a second case, heard at the same time, the employee claimed both direct and indirect sex discrimination. The employer paid 18 weeks’ enhanced maternity pay to mothers on maternity leave but only paid the flat rate of 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 Court of Appeal confirmed that giving enhanced pay to female employees for 14 weeks of their maternity leave, but paying men and women on shared parental leave only the flat rate of statutory pay over a 14-week period, is not direct discrimination.

It rejected the male employee’s argument that the principle that maternity leave was for the mother’s health and wellbeing only applied in the compulsory two-week period immediately after childbirth, and that after that the purpose of maternity leave was the same as that of shared parental leave – to take care of the child.

The Court also ruled that the employee’s claim for indirect discrimination was really an equal pay claim. As it is not possible to claim both indirect sex discrimination and equal pay in the same dispute (ie, they are mutually exclusive) it rejected the indirect discrimination claim.

Notably, the Court did say that had it been asked to rule on the claim as an indirect discrimination claim, it would have rejected it because there was a material difference between the male employee bringing the claim, and a new mother. Even if it had been indirect discrimination, it would still have rejected the claim, because giving enhanced pay to employees on maternity leave (but on the flat statutory rate to employees on shared parental leave) could be justified as a proportionate means of achieving a legitimate aim, ie, the aim of giving mothers special treatment in relation to pregnancy and childbirth.

It said there was a difference between maternity leave and shared parental leave because the former was to help new mothers recover from the physical and psychological impact of pregnancy and childbirth. In particular:

• to get ready for and cope with the later stages of pregnancy;
• to recover and recuperate after the pregnancy, and from the effects of giving birth;
• to build the special mother/newborn relationship; and
• to breastfeed and care for the newborn child.

Maternity leave was also different from shared parental leave in other ways, for example:

• Shared parental leave is optional whereas maternity leave is, at least in part, compulsory.
• Shared parental leave cannot begin before a child is born, whereas maternity leave can.
• There is no immediate entitlement to shared parental leave, from the first day of employment, whereas there is for maternity leave.
• In the case of maternity leave there is no need for there to be a child to look after – a mother is still entitled to take it even if her child has died or been adopted. But there is no entitlement to shared parental leave unless there is a child to be looked after.
• The decision to take shared parental leave is a joint one, taken by the mother and other person entitled to it, whereas maternity leave can be taken irrespective of any other person’s involvement – and even if the mother has no partner.
• The right to maternity leave is an automatic consequence of pregnancy and childbirth, whereas entitlement to shared parental leave depends on the mother choosing to end her maternity leave, convert it to shared parental leave and share it with the other party.

The Court of Appeal comprehensively rejected the argument that paying enhanced maternity pay for 14 weeks to mothers, but only the flat statutory rate of pay to men and women on shared parental leave for 14 weeks, was either direct or indirect sex discrimination.

However, since (as indicated above) the relevant EU Directive only requires member states to give maternity leave to mothers for 14 weeks, it is still arguable that the principle that maternity leave is to protect the mother’s health and wellbeing only applies for the first 14 weeks of that leave.

This still leaves it open to a father (or other male entitled to shared parental leave) to claim that, if a member state chooses to provide more than 14 weeks’ maternity leave to mothers, as in the UK, then once that 14 weeks has expired, the remainder of the maternity leave must be for childcare purposes rather than to protect the health and wellbeing of the mother. If that is the case, the father could therefore argue that as he is just as capable of providing childcare as the mother, he should therefore receive the same pay as her for doing that job.

The same argument could be made for periods exceeding 26 weeks on grounds that this is the UK period of ordinary (as opposed to additional) maternity leave.

Operative date

• Now

Recommendation

• Employers offering enhanced contractual maternity pay to mothers for more than 14 weeks, particularly if they are entitled to it for more than 26 weeks, should consider whether to also give enhanced pay to men and women on shared parental leave for any period of shared parental leave exceeding 14 or 26 weeks, or risk a direct or indirect discrimination claim.
• If they do not, they should identify their reasons (which may be different in relation to the first 14 and/or 26 weeks after childbirth, and thereafter) 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 them.
• They should also check out the government’s Technical Guide.

Case ref: Ali v Capita Customer Management Ltd [2019] EWCA Civ 900