Enhancing maternity pay but not SPL is not discriminatory, courts confirm

Experts welcome protection of provisions for new mothers, but note lack of support for shared parental leave ‘undermines families’

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).

A spokesperson for Penningtons Manches Cooper, which represents the claimant in last year’s case against Leicestershire Police, has confirmed the Supreme Court has refused to hear the appeal against the High Court ruling in favour of the police force.

The decision in effect reinforces the decision that employers are allowed to offer enhanced maternity pay without providing the same benefits through SPL.

Jane van Zyl, chief executive of Working Families, which intervened in both cases considered at the Court of Appeal, told People Management the ruling reflected the “distinct disadvantage that women face in the workplace having experienced pregnancy and childbirth”.

She said: “Maternity leave is designed to protect women’s health and wellbeing: it cannot simply be equated with ‘childcare’.”

Van Zyl added the charity had “long called for” employers to enhance SPL and increase the pay and leave available to new fathers, but said this “cannot be at the expense of existing provisions for new mothers”.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

But Charlotte Woodworth, gender equality director at Business in the Community, said it was increasingly clear policymakers needed to look again at the level of financial support offered through SPL. “This lack of support makes it impossible for many families to even consider it – a key reason the UK has very low take-up rates,” she said.

Woodworth added the financial disincentive involved was a factor preventing many men from taking on a bigger role in caring for their children. This “undermines families of all shapes and sizes attempting to juggle paid work with other responsibilities”, she said. “Whatever arrangements they might want to make, HR policies in effect tell them only one gender should look after the kids.”

Last year’s case saw Madasar Ali and Anthony Hextall bring claims against their respective employers, Capita and Leicestershire Police.

Hextall claimed his employer’s maternity and parental leave policies indirectly discriminated against men. At Leicestershire Police, women on maternity leave were entitled to 18 weeks’ leave on full pay, followed by 39 weeks’ statutory maternity pay, while those taking SPL were only entitled to statutory pay.

Meanwhile, Ali claimed Capita directly discriminated against him by paying him less than a woman on maternity leave. He argued only the first two weeks of compulsory maternity leave were necessary to protect a mother following childbirth, and taking subsequent maternity leave, rather than switching to SPL, was a ‘choice’ about who should provide childcare.

But the Court of Appeal rejected both arguments, saying there was “nothing unusual” about either organisation’s parental leave policy. It noted any action to equalise pay entitlements between mothers and other parents would eliminate “the special treatment afforded to a woman in connection with pregnancy or childbirth”.

Hextall sought to appeal to the Supreme Court, while Ali did not.

Penningtons Manches Cooper, which represents Hextall, said it was reviewing the decision with its client and would not be making any further comment.

Alan Price, CEO of BrightHR, said the development meant employers could now “be reassured that the act of providing enhanced maternity leave pay for employees, but not enhancing SPL pay, is still not classed as discriminating against those taking SPL pay”.

He added: “There is no obligation on employers to enhance either form of leave or pay, providing they are adhering to the statutory minimum requirements.

“That said, employers should consider how offering enhanced family leave can be crucial in encouraging the retention and progression of working parents.”