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Philomena Price
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pprice@se-law.co.uk

Is it direct sex discrimination for employers to not pay new fathers at the same rate as new mothers?

by Philomena Price | Jun 28, 2019 |
Grandparent and child's hands

In the recent Court of Appeal case of Ali v Capita Customer Management Limited it was found that it was not direct discrimination for employers to not pay new fathers on shared parental leave at the same rate as new mothers on maternity leave.

So what is the background to shared parental ​pay?

Maternity Pay

  • New mothers are entitled to statutory maternity pay (SMP) while they are on maternity leave.
  • SMP is payable at two different rates:
  • For the first 6 weeks, at the earnings-related rate – this is 90% of the employee's normal weekly earnings.
  • For the remaining 33 weeks, at either the prescribed rate per week (which changes each year) or the earnings-related rate, whichever is lower.

Shared Parental ​Pay

  • Employees may be able to take Shared Parental Leave (SPL) and be paid Statutory Shared Parental Pay (ShPP) if they’re having a baby or adopting a child and they meet the eligibility criteria. However if the employee is a mother who has given birth she must take a minimum of 2 weeks’ maternity leave following the birth (4 if she works in a factory).
  • Parents can share 50 weeks of leave and up to 37 weeks of pay between them.
  • ShPP is paid at the rate of £148.68 (current rate at time of writing) a week or 90% of their average weekly earnings, whichever is lower.

Employers can choose to enhance any type of parental leave by offering contractual parental leave which pays employees over and above what they are entitled to by statute.

Ali v Capita Customer Management Limited (CCML)

The Court of Appeal found that it was not direct sex discrimination for the employer to offer enhanced maternity pay and not to offer enhanced SPL.

Facts

  • Mr Ali was entitled to two weeks' paternity leave at full pay and then up to 26 weeks' additional paternity leave for which he would receive statutory SPL.
  • Mr Ali’s female colleagues were entitled to contractual maternity pay of 14 weeks' full pay followed by 25 weeks' SMP.
  • Mr Ali argued that after the compulsory two weeks of maternity leave had ended its purpose was no longer to protect a mother who had given birth but rather to facilitate childcare arrangements.
  • Mr Ali claimed he should receive the same enhanced payments for SPL after the compulsory two week period of maternity leave had finished.
  • Mr Ali brought various claims including one of direct sex discrimination against his employer CCML.

Court of Appeal Decision

The Court of Appeal found that the purpose of SPL was not the same as maternity leave. Maternity leave is to protect the ‘health and wellbeing of the pregnant and birth mother’ and SPL is predominantly to do with childcare.

The Court found that Mr Ali could not use a woman on maternity leave as his comparator but rather a woman on SPL would be his comparator. This means there would be no difference in payments and no less favourable treatment had been experienced by Mr Ali. Mr Ali’s claim was dismissed accordingly in relation to his claim for direct discrimination.

Mr Ali’s other claims also failed (equal pay and indirect sex discrimination).

Comment

  • Maternity leave is different to all other types of parental leave as it protects the health of the woman who has given birth to a child.
  • SPL is to do with facilitating childcare, not the biological condition of the parent.
  • This decision will be good news for employers who can be reassured that a man on SPL cannot compare himself to a woman on maternity leave and so they do not have to enhance pay for such leave if they pay enhanced maternity pay to a woman.
  • The rate of take up by fathers has been low since SPL’s introduction and this is probably due to the rate of pay a father would receive.
  • We understand that permission to appeal is being sought so there may be further updates on the position going forward.

For further information please visit:

ACAS http://www.acas.org.uk

Shared Parental Leave and Pay: employer guide https://www.gov.uk/shared-parental-leave-and-pay-employer-guide

Ali v Capita Customer Management Limited https://www.bailii.org/ew/cases/EWCA/Civ/2019/900.html

Get in touch

If you need any further advice, please do get in contact. Call Philomena Price, ​Director and Employment Law Solicitor at Spratt Endicott Solicitors on 01295 204147, or email pprice@se-law.co.uk.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.

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