Is it discriminatory for employers to enhance maternity pay but not shared parental pay?

Permission to appeal to the Supreme Court has been refused for the two authorities involved in this important test case.

The Court of Appeal last year ruled in both  Ali -v- Capita and Hextall -v- Chief Constable of Leicestershire Police that employers can enhance maternity pay without having to enhance shared parental pay.

In the case of Ali, it was argued that it was direct sex discrimination to pay women enhanced maternity pay but not to enhance Shared Parental leave for men.   In Hextall it was argued that a policy of paying women on maternity leave more than those on shared parental leave directly discriminated against men.

Hextall’s appeal to the Supreme Court was also made independently of the Ali authority and the two cases were joined.

At Capita, women employees were entitled to maternity pay at the rate of 14 week’s full pay and 25 weeks at the statutory maternity pay rate.   In contrast parents taking shared parental leave only received statutory parental pay.

In the Hextall case, Leicestershire Police had a policy whereby women received an enhancement of 18 weeks’ full pay and then an additional 39 week’s statutory maternity pay whereas parents on shared parental leave only received the statutory payments.

The fact that permission to appeal to the Supreme Court has been refused means that the Court of Appeal decision is now binding in law.

It has been reported that Jane Van Zyl the Chief Executive at Working Families stated publicly last year that there are concerns that a ruling of sex discrimination in these cases would have undermined the essential protections afforded to women on maternity leave and could have resulted in employers reducing the amount of enhanced maternity pay on offer.

She went on to suggest that ‘The distinct advantage that women face in the workplace having experienced pregnancy and childbirth must continue to be recognised in law…..because maternity leave is designed to protect women’s health and well-being, it cannot simply be equated with childcare’.

The decision to refuse an appeal to the Supreme Court is welcome news for employers who can offer enhanced maternity pay without having to do the same for shared parental pay.

On the downside, this affects many working dads who would benefit from enhanced shared parental pay and it would encourage them to take time off work to properly bond with their newborn child.

Once again it is up to Government to make improvements to these new family friendly rights to ensure that employees and fathers in-particular are encouraged to take up these rights.  It is always a question of affordability in being able to take such time off and such rights are of no practical use if parents are unable to afford the drop in income to take up and enjoy those statutory rights.

If you have any questions about maternity and other family friendly rights then contact Steven Eckett – Partner and Head of Employment at Meaby & Co LLP by e-mail or by telephone: 020 7703 5034