No discrimination in Shared Parental Leave appeals
The Court of Appeal ruled today in the eagerly awaited appeals by men on shared parental leave who were paid less than women on maternity leave. It held that:
- There is no direct discrimination as a man on shared parental leave (which is for childcare purposes) is not in comparable circumstances to a birth mother on maternity leave (who is afforded special treatment for health and safety purposes).
- It is not indirect discrimination to have a policy of paying statutory pay to men on shared parental leave because men and women in the comparison pool were not placed at any particular disadvantage by that policy, criteria or practice. In any event it would be justified as it was proportionate and legitimate to apply the policy of EU law ensuring special treatment relating to maternity.
- A claim that contractual shared parental leave pay is less favourable than contractual maternity pay was properly brought as an equal pay or equality of terms claim – alleging that a sex equality clause should ensure men and women in like circumstances are paid equally.
- Any equal pay claim by a man on shared parental leave pay would fail because the sex equality clause does not apply where there is special treatment relating to maternity, even if the terms were truly comparable.
The central issue in the combined appeals of Capita v Ali and Hextall v Chief Constable of Leicestershire [2019] EWCA Civ 900 was whether it is unlawful discrimination on the basis of sex – whether direct, indirect or equal pay - for men to be paid less on shared parental leave (SPL) than mothers are paid on maternity leave (ML). The emphatic answer from the Master of the Rolls, Lord Justice Bean and Lady Justice Rose is that it is not. Mr Ali and Mr Hextall are both seeking leave to appeal to the Supreme Court.
A summary of the judgment and its rationale by Andrew Burns QC and Lucinda Harris who appeared for Capita is available in the Devereux Employment Blog here.
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