Can you pay women on maternity leave more than men on parental leave?

In an eagerly awaited judgment, the Court of Appeal has resolved the question of whether employers must equalise shared parental leave pay and maternity pay. 

The Court of Appeal's conclusion, in the joined appeals of Ali v Capita Customer Management Limited and Chief Constable of Leicestershire v Hextall, is that paying women on maternity leave more than men on shared parental leave is neither discriminatory nor a breach of equal pay legislation. 

Both the cases considered by the Court of Appeal concerned fathers who had taken shared parental leave in order to care for their baby children. 

In taking that leave, the fathers in question received less pay than they would have received if they had been mothers taking maternity leave. The question was whether this treatment amounted to sex discrimination and/or a failure to provide equal pay to men and women?

On the issue of potential sex discrimination, the Court of Appeal found that no sex discrimination could exist because there can be no 'like for like' comparison between maternity leave and shared parental leave: the two types of leave have entirely different characteristics and are not comparable. The Court's reasoning for this was because:

• Maternity leave is available only to birth mothers and is designed to allow the mother to recover from childbirth, facilitate breastfeeding, allow mothers to develop the 'special bond' with their child and care for their newborn child.

• In contrast, shared parental leave is intended to allow parents to make practical arrangements for allocation of childcare and is not linked to the biological condition of the mother resulting from pregnancy and childbirth.     

There are also other important differences between shared parental leave and maternity leave:

• Statutory maternity leave is in part compulsory, whereas shared parental leave is optional.

• Statutory maternity leave can begin before birth, whereas shared parental leave cannot.

• Statutory maternity leave is an immediate, automatic, entitlement for mothers, whereas parents must 'opt in' to shared parental leave.
  
  
• Shared parental leave can only be taken with a partner's agreement, whereas statutory maternity leave can automatically be taken by mothers.
  
  
• A birth mother is entitled to statutory maternity leave even if there is no child to look after, whereas, for shared parental leave, there must be a child to look after. 

These fundamental differences in the two types of leave mean that any claim for discrimination must fail because the types of leave cannot be compared. 

The correct comparison to make would be between male and female employees who have both taken shared parental leave, and they would be paid exactly the same.

Furthermore, even if paying women on maternity leave more than men on shared parental leave was indirectly discriminatory, it would be objectively justified as a proportionate means of achieving the legitimate aim of protecting the special treatment of mothers in connection with pregnancy and childbirth.

There are also specific provisions in the Equality Act 2010 which prevent claims for discrimination or equal pay from being made in relation to any special benefits afforded to women in relation to pregnancy and childbirth.  

Enhanced pay for mothers during maternity leave falls under these special exceptions, allowing a pay differential between men and women.

Comment

Employers that operate different rates of pay for shared parental leave and maternity leave will welcome the decision. It may be that this decision is appealed but, for the time being, it provides clarity that unequal maternity pay and shared parental leave pay is not discriminatory or a breach of equal pay legislation.

Note, however, the Court of Appeal's decision rests on the concept that maternity leave has very different characteristics from shared parental leave: the former being unique to the birth mother and the latter being open to both parents and not linked to childbirth and maternity. So, unequal pay for male and female employees taking shared parental leave would fall outside of this protection.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions.