Is the failure to pay male employees Enhanced Shared Parental Pay Direct Sex Discrimination?

“No”, held the Employment Appeal Tribunal (“EAT”) in Capita Customer Management Ltd v Ali and another UKEAT/0161/17.

It is compulsory for women to take two weeks’ maternity leave following the birth of their child. Shared parental leave is often seen as the male equivalent of maternity leave taken beyond this two-week period. This is because shared parental leave can only be taken if maternity leave has ended.

Background

The Claimant stated that he was subject to direct sex discrimination because after two weeks of enhanced paternity pay, he was only paid the statutory amount for shared parental leave. On the other hand, his employer paid female employees 14 weeks of enhanced maternity pay followed by statutory maternity pay.

The Employment Tribunal found in the Claimant’s favour. The EAT allowed the employer’s appeal and held that there was no direct sex discrimination for two reasons:

1) Purpose

The EAT held that under the Parental Leave Directive, the purpose of shared parental leave is to care for the child.

On the other hand, the purpose of maternity leave under the Pregnant Workers Directive is to protect the health and wellbeing of a woman during pregnancy and following childbirth and not simply to take care of the child.

Therefore, a female employee taking maternity leave beyond the compulsory two-week period could not be likened to the Claimant’s situation, who was taking shared parental leave to take care of his child.

The female counterpart to the Claimant would be a female employee who wished to take shared parental leave to take care of a child to whom her partner had given birth.

The EAT noted that shared parental leave was given on the same terms for both men and women. There could therefore be no direct sex discrimination when a higher level of maternity pay was given to a woman on maternity leave, than would be given to either sex on shared parental leave.

2) Special treatment

The EAT also held that the payment of enhanced maternity pay fell under section 13(6)(b) of the Equality Act 2010 (special treatment afforded to women in connection with pregnancy or childbirth). Therefore a man cannot claim that he has suffered sex discrimination because he has not been afforded the same special treatment.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

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