The courts have upheld a landmark ruling that it is not discriminatory for employers to offer enhanced maternity pay while only offering statutory pay to staff taking shared parental leave (SPL). In both cases heard last year – Ali v. Capita and Hextall v. Chief Constable of Leicestershire Police – the employer had directly enhanced the pay of women during maternity leave, without doing the same for shared parental leave.

Capita provides female employees with up to 39 weeks of maternity pay, with the first 14 weeks at full pay, followed by 25 weeks of statutory maternity pay. Leicestershire Police Force provides 18 weeks of maternity leave at full pay. It also offers a shared parental leave scheme mirroring the statutory shared parental leave requirements.

The men involved in both cases, Mr Ali and Mr Hextall, brought claims for unlawful direct sex discrimination.

Says Louise Keenan, Associate with Clarkslegal:

“The two joined cases left us with competing judgments on whether a failure to increase statutory parental pay to match enhanced maternity pay would be discriminatory on the grounds of sex.

“[However] the Court held that there was no direct or indirect discrimination. In relation to the argument of direct discrimination, the Court found that there were different purposes for the leave. Maternity leave is ‘to protect a woman in connection with the effects of pregnancy and motherhood’ and shared parental leave is related to ‘facilitating childcare by the child’s parents’. The Court also held that the claim for indirect discrimination was wrongly categorised and should have been brought as an equal pay claim and highlighted that equal pay legislation does not allow comparisons with women on maternity leave.”

These decisions were upheld by the Supreme Court in February 2020 when the Supreme Court refused leave to appeal.

Keenan concluded:

“This case provides welcome clarification on the law. Employers should ensure that those who may receive enquiries on such leave and pay are aware of the principles in this case and that consistent messages are being provided to avoid any confusion.”