Despite the increasingly flexible childcare arrangements that have been available to parents since the introduction of shared parental leave in 2015, most employers do not ‘match’ the pay received by male and female employees when taking family leave. It remains common for organisations to offer enhanced maternity pay to female employees, but no enhanced shared parental pay (nor enhanced paternity pay, in many cases) to male employees.
Historically, it has been difficult for male employees to complain about this because the Equality Act 2010 and associated legislation provides that the special treatment afforded to women in connection with pregnancy and childbirth must be disregarded in claims of discrimination. Effectively, it is recognised that the fundamental biological differences between mothers and fathers must be taken into account, and that men cannot fairly compare themselves with women when it comes to leave to care for a child.
This apparently settled position has potentially been disturbed by the recent case of Ali v Capita Customer Management Ltd. Mr Ali wished to take a period of shared parental leave following the birth of his child and was told that he would receive only statutory shared parental pay if he did so. In contrast, a female employee taking maternity leave for the same period of leave would have received full pay because of the enhanced maternity pay policy that Capita had in place.
Mr Ali’s claim of direct sex discrimination was successful: the Leeds employment tribunal found that he had been treated less favourably and that the reason for his less favourable treatment was his sex. The employment judge considered that the correct comparator for Mr Ali was a female employee wishing to take maternity leave after the two-week compulsory maternity leave period. By that stage, the purpose of the leave was to care for a baby, and was no longer related to pregnancy or childbirth.
That decision will worry many employers and might lead them to reconsider payments made to employees while on family leave. However, before any wholesale changes are made to policies, we stress that, at this stage at least, the Ali case is an employment tribunal decision only, meaning it is not binding on other tribunals. It is also understood that Capita has appealed and so there could be a different decision reached by the Employment Appeal Tribunal in due course.
The decision in Ali also contradicts another recent ruling made by Leicester Employment Tribunal in Hextall v Chief Constable of Leicestershire Police. In Mr Hextall’s case, the tribunal found the correct comparator for a male employee wishing to take shared parental leave was a female employee wishing to take shared parental leave, not a female employee taking maternity leave. As the female employee would have received statutory shared parental pay only, there was no less favourable treatment (and so no discrimination) because of sex.
We understand the Hextall judgment has also been appealed, and so there are (at least) two decisions on this topic working their way through the Employment Appeal Tribunal. While a review of policies and practice is not required immediately, this is an issue that should be monitored by HR practitioners.
With social attitudes changing, a renewed focus on gender pay inequality and fathers likely to play an increased role in childcare generally, further developments in this area are to be expected. Progressive family leave policies in which working fathers are offered similar benefits to working mothers in terms of leave and pay could be the norm in a matter of years.
Mike Tremeer is a senior associate at Fladgate