Does unequal pay equal discrimination?
We explore whether a failure to enhance shared parental leave was discriminatory.
In a recent case the Court of Appeal considered whether it was discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave.
The case concerned two male claimants, Mr Ali employed as a business customer advisor at CCM Limited and Mr Hexhall, a Leicestershire police constable. Both decided to take shared parental leave (SPL) upon becoming fathers. Both sets of employers offered enhanced maternity pay to women on maternity leave. CCM offered 14 weeks full pay followed by 25 weeks statutory maternity pay (SMP) and Leicestershire Police offered 18 weeks full pay followed by 39 weeks SMP.
In contrast CCM Ltd and Leicestershire Police only offered the statutory rate of shared parental pay (SPP) to those taking SPL. Both men brought tribunal claims, arguing that the failure to pay them the equivalent of enhanced maternity pay amounted to direct discrimination contrary to S.13 of the Equality Act 2010 (EQA). The police constable also claimed indirect discrimination contrary to S.19 EQA.
With regards to Mr Ali the tribunal initially found that he had been discriminated against on the grounds of his sex but dismissed the indirect claim. With regards to Mr Hexhall both his direct and indirect discrimination claims were dismissed. Both claimants appealed. The Leicestershire Police also cross appealed stating that the tribunal had erred in classifying the claim as one of indirect discrimination rather than equal pay.
The appeals were heard together. In relation to Mr Ali’s claim, the Court of Appeal decided he could not compare himself to a female employee on maternity leave and instead the comparator should have been a female worker on SPL. Therefore, the direct claim failed because he was not treated less favourably than the comparator. The rationale was that the purpose of statutory maternity leave was to enable the mother to prepare and cope with the later stages of pregnancy and to recuperate from the pregnancy. The reasoning also included other exclusive factors to the birth mother that are not shared by the husband or partner.
In relation to Mr Hexhall the Court of Appeal agreed with Leicestershire Police that Mr Hexhall’s claim was properly characterised as an equal pay claim under S.66 EQA. The Court went on to find that the claim could not therefore proceed as S.66 does not operate in relation to terms that afford special treatment to women in connection with pregnancy or childbirth.
The take up of SPL has been low since its introduction which in part may reflect the fact that few companies have enhanced schemes in place. These decisions will be welcomed by any employers with enhanced maternity pay policies who do not wish to also enhance SPL. However Mr Ali and Mr Hextall are believed to be seeking permission to appeal to the Supreme Court so “watch this space” for any further developments.