Setting paternity pay below the level of enhanced maternity pay is not discriminatory, EAT rules

Decision is an ‘important safeguard’ to protect pregnant women and new mothers, experts say

It is not discriminatory to set paternity pay at a lower level than enhanced maternity pay, the Employment Appeal Tribunal (EAT) has ruled, in a case seen as significant for determining parental leave rights.

Judging the appeal launched by Capita following Ali V Capita Customer Management Ltd, the EAT found that the original tribunal had failed to consider the full purpose of paid maternity leave for “the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”. 

Mr M Ali had made a successful claim last year for direct sex discrimination against his employer after it refused to allow him to take additional paternity leave at full pay

This has now been overturned, with the employment tribunal ruled to be wrong in finding that the company had discriminated by not affording the new father aligned rights to a mother on maternity leave. 

Ali had worked for Capita Customer Management after being transferred under TUPE  from Telefónica in July 2013. He fell into a dispute with his employer in April 2016 after his wife gave birth to their child and subsequently suffered postnatal depression. 

Ali’s wife was advised to return to work to help speed up her recovery from postnatal depression, but Ali was only permitted to take extra time off under shared parental leave, which would be covered only by statutory pay.

Ali argued that by not allowing him to take further leave at full pay, his employer was effectively overwriting the choice he and his wife wanted to make, to have him take more responsibility for caring for their child. He added that under the terms of their contracts, a female employee would be entitled to 14 weeks’ paid leave following the birth of her child, and he was therefore being discriminated against.

The tribunal found in favour of his direct discrimination claim, on the grounds that the “caring role he wanted to perform was not a role exclusive to the mother”.

However, the EAT found that the tribunal was wrong to agree that Ali’s circumstances “were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth, as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay.” 

They pointed out that a mother caring for her baby was a consequence, as opposed to the purpose, of maternity leave and pay, and that entitlement pay is “inseparable” from the type of leave taken. The finding of direct sex discrimination was dismissed.

Commenting on the ruling, Jenny Arrowsmith of Irwin Mitchell, solicitors for Capita, said it was pleased the EAT had recognised that the employment tribunal “misapplied the law on this complex issue”. 

She added: “It is now legally recognised that maternity leave serves a purpose that is not met by other types of family-friendly leave – that is, the protection of the health and wellbeing of the birth mother during the late stages of pregnancy, confinement and childbirth – rather than to look after a baby. Caring for the baby is the purpose of shared parental leave.” 

Kate Palmer, head of advisory at Peninsula, told People Management that the decision was a significant one for those worried about the application of shared parental leave, adding that the ruling “confirms how most HR professionals thought the law would be applied. 

“When shared parental leave was first introduced, the government’s technical guidance explained that it was a decision for individual employers that offered additional pay for maternity leave, as to whether they offered extra pay for those on shared parental leave. 

“The employment tribunal’s original decision, in this case, was a shock to many employers who had followed this guidance.”

A statement issued by Sarah Jackson, chief executive of work-life balance charity Working Families, which acted as an intervenor in the case, said the decision was an “important safeguard” for the special legal protections needed for pregnant women and new mothers.

“The particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law. Only women can experience childbirth, and maternity leave is to protect women’s health and wellbeing – it cannot simply be equated with ‘childcare’,” she said. 

“We have long called for greater rights and pay for working fathers, including properly paid, standalone period of extended paternity leave for fathers. But these should complement, not undermine, the rights of working mothers. This is a not a zero-sum game.” 

Michelle Morgan, employment solicitor at Gardner Leader, said: “Businesses will be pleased to hear that failure to enhance shared parental pay in line with enhanced maternity pay is not discriminatory on the grounds of sex.” 

She adding that the level of pay was “inextricably linked” to the purpose of maternity leave protecting the health and wellbeing of women during pregnancy and after childbirth.  

However, Luke Bowery, partner at Burges Salmon, said that while the decision was “unsurprising” from a legal perspective, it would be interesting to see whether adjustments were made in the future around shared parental leave.

“With the government’s current focus on raising awareness of shared parental leave, particularly among fathers, coupled with the gender pay gap fallout, it will be interesting to see if the legislative framework is tweaked to make shared parental pay more generous at some point in the future,” he said.