18 June 2019

Schools can enhance maternity pay and not mirror the enhancement for shared parental pay

The Court of Appeal has delivered an important decision for schools who enhance maternity pay but do not mirror that enhancement for employees taking shared parental leave (SPL).

In the combined appeals of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall, the Court of Appeal has confirmed that it is not discriminatory (directly or indirectly) to pay men on SPL less than an enhanced rate of pay available to a woman on maternity leave.

 

Facts

 

In both cases, male employees claimed sex discrimination on the basis that their employer’s SPL policies provided for the statutory rate of SPL pay, while their maternity leave policies provided for enhanced maternity pay.

In the first appeal, women at Capita were entitled to maternity pay of up to 39 weeks, with the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking SPL received statutory shared parental pay only. Mr Ali wanted to take 14 weeks off work following his daughter’s birth to care for her because his wife had been diagnosed with post-natal depression and had been advised to return to work. For the first two weeks, he received paternity pay. For the following 12 weeks of SPL, he was paid at the statutory rate. Mr Ali claimed that this was direct discrimination on the grounds of sex, as his female colleagues were entitled to full pay for 14 weeks of maternity leave.

In the second appeal, the Police operated a similar policy – women were entitled to 18 weeks full pay followed by 39 weeks of statutory maternity pay, whilst those on SPL were only paid at statutory rates. Mr Hextall, a police constable, took 14 weeks’ of SPL for which he received statutory pay. He claimed indirect discrimination on the grounds that the ‘provision, criterion or practice’ of ‘paying only the statutory rate of pay for those taking a period of SPL’ placed men at a particular disadvantage in comparison to women.

 

Court of Appeal’s decision

 

In a clear and unanimous judgment, the Court of Appeal rejected both claims.

Fundamentally, the Court concluded that maternity leave fulfils a range of different purposes to SPL. For example, to protect the health and wellbeing of the birth mother, to allow them to recuperate from the effects of childbirth and to develop a special relationship between mother and child. In doing so, the Court rejected the contention that the predominant purpose of both SPL and maternity leave is to facilitate childcare.

The Court went on to comprehensively dismiss Mr Hextall’s claim of indirect discrimination, holding that mothers taking maternity leave cannot be included in the pool for assessing disparate impact between men and women given the special protection afforded to them. The Court went on to state that even if indirect discrimination could be made out, the difference in treatment was justified for the same reason.

Both Claimants have asked for permission to appeal to the Supreme Court so this may not be the final position on this matter.

 

Impact on schools

 

Nevertheless, this decision is significant because, for now, the legal position is clear – schools will not be liable to a sex discrimination claim if they operate an enhanced maternity pay policy and a statutory rate SPL pay policy.

Schools may still want to consider matching these payments if they are of the view that it would be in their best interests to do so. However, based on this decision, there is no legal obligation to do so.

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About the Author
Hannah Wilding, Solicitor
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