On 24 May 2019 the Court of Appeal delivered an important decision for employers who enhance maternity pay but do not mirror that enhancement for employees taking shared parental leave.
Mr Ali and Mr Hextall’s argued that this failure, by their respective employers, to mirror the pay amounted to direct and/or indirect sex discrimination. Mr Ali argued that it was direct sex discrimination by his employers to allow a new father on shared parental leave only 2 weeks’ leave on full pay when female staff were allowed 14 weeks’ maternity leave on full pay. Mr Hextall argued that it was indirectly discriminatory for him to receive only statutory pay during shared parental leave, whereas a woman on maternity leave was entitled to full pay for the first 18 weeks of her maternity leave.
The Court of Appeal held that there was neither direct nor indirect discrimination. As regards direct discrimination the court found that a man on shared parental leave could not compare himself to a birth mother on maternity leave – only women can experience childbirth and maternity leave which is why they have ‘special protection’ under EU law. Unlike shared parental leave, which is designed for the purpose of childcare, maternity leave is designed to protect the health and wellbeing of pregnant and/or birth mothers.
While the court clarified that Mr Hextall’s claim was in reality an equal pay claim (which failed) rather than indirect discrimination, it held that in any event, there was no indirect discrimination because men and women in the comparison pool (those on shared parental leave) were not placed at any particular disadvantage by that policy, criteria and practice. Mr Hextall should be compared to female partners on shared parental leave and not with birth mothers. If there was indirect discrimination then the court stated that the disadvantage to Mr Hextall was justified as a proportionate means of achieving the legitimate aim of giving special treatment to birth mothers in connection with their pregnancy and childbirth.
This case is likely to be the subject of appeal.