If you’re having a baby or adopting a child, you and your partner may be able to get Shared Parental Leave and Statutory Shared Parental Pay. You can share up to 50 weeks of leave and up to 37 weeks of pay between you in the first year after your child is born or placed with your family. You can also choose to be off work together or to stagger the leave and pay.
In the combined cases of Ali v Capita and Hextall v Chief Constable of Leicestershire Police, the Court of Appeal has ruled that it is not discriminatory (either directly, indirectly, or in terms of equal pay) to pay male parents on shared parental leave at a lower rate than women on maternity leave.
Mr Ali’s daughter was born on 5 February 2016, after which he immediately took two weeks of leave. During that leave his wife was diagnosed with post-natal depression and was advised by her doctor to return to work. When Mr Ali asked to take further time off work to care for his daughter, he was informed by Capita that he was only entitled to shared parental leave at the statutory rate of pay, which was far lower than his ordinary rate of pay. By comparison, under the company’s enhanced contractual scheme, women entitled to maternity pay of up to 39 weeks would get the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay. He brought a claim for unlawful direct sex discrimination. His claim failed.
The Court ruled that Mr Ali cannot be compared to a woman on maternity leave, as under the Equality Act, maternity leave is provided to new mothers to assist in their physical and mental recovery from pregnancy and childbirth whilst shared parental leave is for childcare. Plus, any female employee on shared parental leave would receive the same rate of pay as him. Therefore, there was no direct discrimination.
Mr Hextall is a serving police constable. When his wife gave birth to their second child in 2015, he took shared parental leave over a 14-week period and was paid the statutory rate.
He brought a claim for unlawful indirect discrimination, stating that by being paid shared parental leave at the statutory rate disadvantaged men as he was unable to benefit from an equivalent rate of pay to that received by women on maternity leave when taking leave to act as primary carer for his child. The principle behind an indirect discrimination claim is that a seemingly neutral policy results in a substantial disadvantage to a particular group.
Leicestershire Police argued that Mr Hextall’s complaint was, in fact, about equal pay. The court agreed that this issue was about the inequality of terms rather than one of indirect discrimination but said Mr Hextall could not have been successful with that type of claim anyway. The Equality Act allows employers to make exceptions for women who are pregnant have recently given birth or who are breastfeeding. This special treatment is not available to anyone other than the birth mother.
Ultimately, the Court ruled that shared parental leave is not comparable with maternity leave. It said that the employee’s complaints were “an attack on the whole statutory scheme” under which special treatment is given to birth mothers. Hence, employers are not discriminating against the partners of birth mothers if they do not pay enhanced benefits for them taking leave to care for their newborn.