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Since the introduction of shared parental leave, we have often been asked by employers about the concept of enhanced maternity pay. If you pay employees enhanced maternity pay under your maternity policy, do you need to match this in your paternity and shared parental policies too? Is it discrimination if you don’t?
The point has just come before the Court of Appeal in the two joined cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall
In the first case, Mr Ali was entitled to two weeks’ paternity leave at full pay, then up to 26 weeks’ at the statutory rate of shared parental pay. His female colleagues, on the other hand, were entitled to 14 weeks’ full maternity pay. He argued that this was sex discrimination; the Court of Appeal said it wasn’t. A father taking shared parental leave is not in the same position as a mother taking maternity leave. The correct comparator is a woman also taking shared parental leave. In any event, there is an exception in discrimination law which says that when deciding whether a man has been discriminated against because of sex, no account should be taken of special treatment afforded to women in connection with pregnancy or childbirth. That “special treatment” includes enhanced maternity pay.
In the second case, Mr Hextall took 14 weeks of shared parental leave and was paid the statutory rate. His female colleagues were entitled to 18 weeks’ maternity leave on full pay. He claimed that the more favourable terms offered to female employees were implied into in his terms of work by operation of the sex equality clause – section 6 of the Equality Act 2010. Again, he was prevented from relying on this because of the more favourable terms related to special treatment in connection with pregnancy or childbirth.
So, both appeals failed. We understand that both claimants are seeking permission to appeal to the Supreme Court. For now, however, employers do not need to review paternity or shared parental pay policies to bring them in line with any enhanced maternity pay offered, although many employers are choosing to offer enhanced benefits in order to attract and retain staff and to promote family-friendly working practices.
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