Paying women on maternity leave more than men on shared parental leave lawful


3 mins

Posted on 29 May 2019

Employers who pay enhanced maternity pay to women on maternity leave but only statutory pay to men on shared parental leave are not acting unlawfully. The Court of Appeal has confirmed that this is not sex discrimination and does not break equal pay laws. Employers may therefore give enhanced maternity pay to women on maternity leave without having to enhance pay for men on shared parental leave. However, they must pay men and women on shared parental leave the same.

The claims

The Court of Appeal heard two appeals in cases where the employers paid enhanced rates of pay to women on maternity leave but only paid the statutory rate of pay to men on shared parental leave. In one case, Mr Ali claimed direct sex discrimination, arguing that his employer had treated him less favourably because of his sex. In the other, Mr Hextall claimed that his employer’s policy of paying shared parental leave at the statutory rate was indirect sex discrimination. His employer argued that he should have brought his claim as an equal pay claim and not indirect sex discrimination.  

Paying less not direct sex discrimination

The Court of Appeal ruled that paying a man on shared parental leave less than a woman on maternity leave is not direct sex discrimination. It rejected Mr Ali’s argument that he could compare his treatment with that of a woman on maternity leave. When making a comparison there must be “no material difference” in the circumstances of the man and the woman. The Court of Appeal considered that there are material differences between the circumstances of a man on shared parental leave and a woman on maternity leave because the leave serves different purposes. The purpose of maternity leave is to enable a woman to recover from giving birth and to bond with her child, whereas the main purpose of shared parental leave is childcare. 

Mr Ali could only compare his treatment with that of a woman on shared parental leave. His claim therefore failed as his employer paid all employees on shared parental leave at the statutory rate.

Mr Hextall should have brought equal pay claim 

Mr Hextall’s employer argued that he should have brought his claim as an equal pay claim because it related to the terms of his employment. The Court of Appeal agreed. However, it went on to rule that an equal pay could not succeed. Where an employer provides a woman with more favourable maternity pay terms, this amounts to special treatment afforded in connection with pregnancy or childbirth. This is an exception to the right to equal pay. Mr Hextall could not therefore succeed in an equal pay claim.

Mr Hextall could not claim indirect sex discrimination

The Court of Appeal’s ruling that Mr Hextall had to bring his claim as an equal pay claim meant he could not claim indirect sex discrimination. The claims are mutually exclusive. This was despite the fact that his equal pay claim failed.  

Ali v Capita Customer Management Ltd and The Chief Constable of Leicestershire Police v Hextall 

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