The Employment Appeal Tribunal (‘EAT’) has considered the issue of whether men who take Shared Parental Leave are entitled to the same rate of pay as female workers receiving maternity pay.

In the case of Capita Customer Management v Ali, the EAT has overturned the original decision of the Employment Tribunal, and confirmed it would not be direct discrimination for an employer to provide better rates of pay to women who take maternity leave compared with men who have used Shared Parental Leave.

After the birth of his baby Mr Ali took his two week period of paid Paternity Leave. His wife returned to work (at a different employer) and Mr Ali sought to utilise the equivalent period of leave his wife would have been entitled to as Shared Parental Leave from Capita. He requested pay at a rate equivalent to SMP (Statutory Maternity Pay). The policy at Capita stated that fathers were entitled to additional 26 weeks leave, which “may or may not be paid”. By not being paid whilst absent, Mr Ali argued he was treated less favourably than a female comparator taking maternity leave. At Capita, a mother would receive 14 weeks at full pay and a further 25 weeks at SMP rate.

The EAT reviewed the statutory purpose behind Shared Parental Leave when it was introduced by the Children and Families Act 2014. It held that maternity leave and pay was enacted as a health and wellbeing measure for women after pregnancy and childbirth. The focus of Shared Parental Leave was to promote flexibility for parents in the management of childcare.

The difference in the purposes meant that a comparison between the two was not valid when bringing a direct discrimination claim. As the two are not appropriate comparators under the Equality Act, there cannot be less favourable treatment.

This case relates to a claim of direct discrimination. It should be noted another appeal case (Hextall v Leicestershire Police) has been brought on the basis of indirect discrimination. It was heard at the same time as the Capita case, but the judgment has not yet been published.

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