In Ali v Capita Customer Management Ltd and ors, the Court of Appeal considered whether two employers discriminated against male employees by not enhancing shared parental pay when they did enhance maternity pay.

The two claimants, Mr Ali and Mr Hextall, both decided to take shared parental leave. Both employers offered enhanced maternity pay to new mothers taking maternity leave, but only offered statutory shared parental pay to parents taking shared parental leave. Both Ali and Hextall brought employment tribunal claims alleging that the failure to enhance shared parental pay constituted direct discrimination on the basis of gender. Mr Hextall also argued that this treatment constituted indirect discrimination.

Ali’s claim

Mr Ali’s claim had initially been rejected because he had sought to compare himself to a new mother on maternity leave. This had been found to be inappropriate as the purposes of maternity leave and shared parental leave were different; the former was to safeguard the health and safety of new mothers, whilst the latter was to facilitate a more equal division of childcare. Mr Ali acknowledged that during the first two weeks following a birth, there was a material difference between his situation and that of a new mother, who would be recovering from the birth and who therefore benefitted from a 2-week period of compulsory maternity leave. However, he maintained that, following that 2-week period, his circumstances were substantially the same as those of a new mother taking maternity leave. A new mother was therefore (in his view) an appropriate comparator and therefore he ought to receive the same enhanced pay as a mother on maternity leave (save for those first two weeks). The Court of Appeal rejected this argument. It disagreed that, after a 2-week period, the purpose of maternity leave became the same as that of shared parental leave. European legislation (from which the right to family leave derives) recognised that the policy motivations underpinning maternity leave are related to health and safety (e.g. there is a recognised need for a minimum 14 weeks’ maternity leave in the Pregnant Workers’ Directive). This policy interpretation was reinforced by various case decisions. The proper comparator for Ali was therefore a female worker taking shared parental leave, for whom the entitlement was the same. Therefore, Mr Ali’s claim failed.

Mr Hextall’s claims

Mr Hextall’s equal pay claim did not succeed due to an exemption in the Equality Act (referred to here as the Pregnancy Exemption) which states that the equality clause provisions do not operate to remedy inequality where that inequality had been caused by special treatment being offered to women in connection with pregnancy or childbirth. The Court of Appeal also held that Mr Hextall’s indirect discrimination claim could not succeed, because it was not possible to bring discrimination claims under the Equality Act regarding matters which could be resolved by an equal pay claim, or which would be resolved by an equal pay claim were it not for the Pregnancy Exemption.

This decision will be comforting to employers who enhance maternity pay but do not do the same for shared parental pay. If the claims had succeeded that would seem at odds with the spirit and policy motivations of EU law, which emphasises the protection of women’s health and safety in relation to maternity leave. However, in practice many employers are now choosing to enhance both maternity and shared parental pay in any event, given that encouraging male employees to take shared parental leave seems to have a positive effect on recruitment, retention and employee morale.

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