Shared Parental Leave: Failure to enhance pay for men is not direct sex discrimination

In the case of Capita v Ali, the EAT was asked to consider whether failing to enhance shared parental leave pay in line with enhanced maternity pay is direct sex discrimination.

In a welcome move for employers, the EAT held no.

They determined that the original tribunal erred in their conclusion that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare.

The EAT defined the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth.

As the level of pay is closely linked to the purpose of the leave, the EAT held that the father’s situation was not comparable to a woman on maternity leave.

The EAT also reiterated that the purpose of shared parental leave is different from that of maternity leave/pay.

They noted that shared parental leave is given on the same terms for both men and women, therefore there is no direct discrimination when a higher level of maternity pay is given that would be given to either sex on shared parental leave.

The EAT held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.