The Employment Appeal Tribunal (EAT) has held that a failure to pay a male employee enhanced shared parental pay was not sex discrimination.
We have now had some useful authority on the issue of whether employers who pay female employees enhanced maternity pay but only pay shared parental pay at the statutory rate are guilty of sex discrimination.
The answer from the EAT in the case of Capita Customer Management Ltd v Ali and another UKEAT/0161/17 is a resounding “no”.
Mr Ali had brought his claim against Capita because despite his female employees being entitled to 14 weeks’ full pay on maternity leave, he was only entitled to receive the statutory rate of shared parental pay. The Employment Tribunal did actually agree with Mr Ali and found that he had been discriminated against. The Tribunal felt that the purpose of maternity leave was to care for a child and therefore, after the initial 2 week period, there was no justification for treating a man differently if he was performing this caring role.
The Tribunal’s decision has now been overturned on appeal by the EAT who disagreed with the idea that the primary purpose of maternity leave is to care for a child. The EAT felt the focus of maternity leave is to provide for the care and wellbeing of the mother. As such, it is permissible to pay a woman a higher rate of pay for the period of maternity leave compared to a man who is on shared parental leave.
The EAT has also clarified that the correct comparator to use in these type of situations is not a mother on maternity leave but a women on shared parental leave. Provided that an employer pays the statutory rate to both sexes when they take shared parental leave, it will not fall foul of the discrimination legislation.
This case is useful in clarifying the position for employers who have been nervous about continuing to pay enhanced rates of maternity pay, but not extending this to men who seek to take shared parental leave.
The decision is perhaps surprising given the push in recent years for men to participate more equally in childcare, for the benefit of both sexes. It remains to be seen whether the claimant has any appetite for appealing the decision although it is not hard to imagine that there are organisations who would be willing to support his appeal on the basis that they believe the decision unfairly prejudices working families.
