We would endorse the advice given by Working Families below. Employers should consider whether they will allow men taking shared parental leave to benefit from the same pay enhancements offered to women taking maternity leave. It is important to look at the reasons and policy behind the decision because it is possible to defend a claim for indirect discrimination if the employer can show that their policy or practice is objectively justified. One argument to objectively justify not enhancing shared parental leave payments for men may be that the employer is in an industry where women are under-represented and the employer wishes to increase numbers of women and incentivise them to return to work after having children.
That said, adopting an equal approach will reduce the risk of potentially costly litigation (and the negative PR involved) so some employers will take the view that this is not a ‘battle’ that they wish to pick.
In the recent case of Capita Customer Management Ltd v Ali, the Employment Appeal Tribunal (EAT) held that it was not direct sex discrimination to pay a man less for a period of shared parental leave than it would pay a woman on maternity leave.
The Capita v Ali case was joined to the related case of Hextall v Chief Constable of Leicestershire Police. In Hextall, the argument was made that the practice of paying men on shared parental leave less than a woman on maternity leave amounted to indirect, rather than direct sex discrimination. The EAT has decided that it does potentially amount to indirect discrimination and has sent the case back to the Employment Tribunal to determine whether men were put at a particular disadvantage in that particular case.
So, what is the disadvantage? Mr Hextall says that the disadvantage to men in his case was as follows: “it is more difficult for men to take the leave available to them than it is to stay at work. If a man stays at work, he receives full pay, but if he takes the available leave, he receives only the statutory rate of pay… the overwhelming majority of women in the same circumstances suffer no such disadvantage, because they have a full-pay alternative available to them in the form of occupational maternity pay: making the choice to take the available leave is very much easier”. The EAT found that the correct ‘pool’ for testing for disadvantage was “those police officers with present or future interest in taking leave to care for their new-born child”.
An organisation called ‘Working Families’ intervened in both the Hextall and the Ali case. It issued a press release stating, “This does not mean that Mr Hextall has won his claim or that it has been held that it is discriminatory not to match enhanced maternity pay for those on shared parental leave. There are still arguments to be made as to the different purposes underlying the two types of leave, and it will be open to the employer to try to justify the difference in treatment.
In the meantime, as we recommended at the time of implementing shared parental leave, employers would do well to analyse the reasons and intentions behind the rates of pay applicable under each policy. What aim is it they are seeking to achieve? Is it legitimate, and does it pass the test for objective justification? Conducting this analysis under the cloak of legal advice privilege may prove advantageous further down the line”.