Is it directly or indirectly discriminatory that men are paid less when on shared parental leave than women on maternity leave? In a ground-breaking decision, the Court of Appeal has answered that burning question in the negative.
Women are entitled to 52 weeks' leave after giving birth, 39 of them paid. The first six of those weeks are paid at a higher rate than the succeeding 33. Shared parental leave is available for both parents where a new mother sacrifices part of her maternity leave and splits the remaining period with her partner. Shared parental leave is, however, always paid at the lower of the two rates available in respect of maternity leave.
Two fathers argued that those provisions, and the way in which they were applied to them, amounted to either direct or indirect sex discrimination. Their claims failed after progressing through the tribunal system, but both men appealed.
The first case concerned a father whose employer granted new mothers full pay for the first 14 weeks of their maternity leave, an arrangement that was substantially more generous than the statutory minimum. The employer’s policy in respect of shared parental leave, however, mirrored the statutory scheme, with the result that the father could only qualify for leave at the lower rate of pay. The father submitted that that outcome discriminated directly against him because of his sex.
The second case concerned a police officer who worked for a force which afforded new mothers 18 weeks of maternity leave on full pay. The force’s policy again mirrored the statutory scheme in respect of shared parental leave. That policy was said to cause a particular disadvantage to men and to amount to indirect discrimination.
In ruling on the first case, the Court noted that, in order to succeed in his claim, the father had to establish that he had been treated less favourably than a comparable female employee on the basis of his sex. However, he faced a major hurdle in that Section 13(6)(b) of the Equality Act 2010 required the Court to disregard any special treatment afforded to mothers in connection with pregnancy or childbirth when comparing the father’s treatment with that of a hypothetical female co-worker.
The Court found that the father’s circumstances were in any event materially different from those of a mother on maternity leave. Where one of the primary purposes of maternity leave is to assist mothers in recovering from the physical and psychological impact of childbirth, the father was wrong to argue that its only purpose, after the first two weeks of compulsory leave, is to help with childcare.
The proper comparator for the purposes of a direct discrimination claim was therefore not a woman on maternity leave but a woman on shared parental leave. There was, on that analysis, no difference between his treatment and that of such a co-worker.
Turning to the second case, the Court found that the officer’s claim was not properly categorised as one of indirect discrimination. Rather, his argument was that his terms of work had been modified by the sexual equality clause which is implied by the Act into all terms of work. That, he submitted, entitled him to take leave to care for his newborn baby at the same rate of pay as a mother taking maternity leave.
The Court, however, found that that argument was bound to fail because the Act provides an exception, in that the implied sex equality clause has no effect in relation to terms of work which afford special treatment to women in connection with pregnancy or childbirth. The Court noted that, in any event, a claim for indirect discrimination cannot be brought where the claim is, in reality, an equal terms claim, even if the latter claim only fails due to the application of the statutory exception.
In dismissing both men’s appeals, the Court concluded that the different rates of statutory pay afforded to new mothers and their partners following the birth of a child do not constitute unlawful discrimination, whether direct or indirect.