Shared parental leave, enhanced maternity pay and discrimination

Since shared parental leave was introduced in 2015, take-up has remained stubbornly low. One reason for this is thought to be the fact that many employers who provide enhanced maternity pay only pay the statutory rate for shared parental leave (a maximum of £148.68 per week). 

10 Jun 2019

Two male employees (of different businesses) in this position challenged their employers' practice, claiming it is sex discrimination. Last week, in a helpful result for businesses, the Court of Appeal confirmed that offering enhanced maternity pay but not enhanced shared parental pay is not unlawful sex discrimination and does not breach equal pay law.

The key point in this case was a rule in the Equality Act which states that in determining whether a man has been discriminated against because of sex, no account is taken of special treatment afforded to women in connection with pregnancy or childbirth. Under this rule, a man cannot claim that he has suffered sex discrimination because he has not been accorded the same special treatment.

The question was whether offering enhanced maternity pay is "in connection with pregnancy or childbirth". The male claimants argued that after compulsory maternity leave (which lasts 2 weeks) has ended, the purpose of the leave is not recovery from childbirth but looking after the baby. (Any recent mothers still wincing at the memory might be forgiven for disagreeing.) The Court firmly rejected this argument and the sex discrimination claim was therefore rejected.

In one of the claims, the enhanced maternity pay was a contractual right rather than a discretionary practice contained in a policy. The Court ruled that this meant it needed to be treated as an equal pay claim rather than sex discrimination and held that providing enhanced maternity pay but not enhanced shared parental pay did not breach equal pay law. For good measure, the Court also confirmed that even if they were wrong and the case should have been treated as indirect sex discrimination, that claim would also have failed because the policy was justified.

The ruling is helpful for employers (although we understand that at least one of the employees is likely to appeal to the Supreme Court). In the meantime, although equalising enhanced maternity and shared parental leave pay may be attractive to employers keen to promote equal parenting, it is not a legal requirement.

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