We ought to revisit two other cases on which we have commented before: Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall. On both occasions, our judges have been asked to consider whether it is discriminatory to offer enhanced levels of pay to mums or maternity leave, whilst providing only statutory minimum levels of pay to dads on shared parental leave. Could this amount to sex discrimination?

The Court of Appeal decides

These cases have already been considered by the Employment Tribunal and the Employment Appeal Tribunal. However, the Court of Appeal recently concluded that women on maternity leave and men on shared parental leave cannot be compared, as they are absent from work for different reasons. Men are off work to care for the child; women are off for reasons relating to pregnancy and childbirth. Insofar as they are off work for different reasons, the difference in treatment does not amount to direct sex discrimination. Attempts to argue that such arrangements could constitute a breach of equal pay legislation failed for similar reasons.

Good news and bad news

This decision appears to uphold an employer’s right to enhance maternity pay, whilst paying only the statutory minimum sums due in relation to shared parental leave. In an ideal world, no doubt employers would pay enhanced rates of pay in all cases. However, we were concerned that if the decision went the other way, it might discourage employers from offering any sort of enhancement at all. In an effort to avoid a ‘race to the bottom’, we are satisfied that this is probably the best outcome.

If you feel differently, let us know.

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