Shared parental pay: is refusal to match enhanced maternity pay sex discrimination?

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman asks if an employment tribunal was correct to hold that it was direct sex discrimination for a new father to be allowed to take only two weeks' leave on full pay, when female staff were entitled to 14 weeks' enhanced maternity pay.

We need to be clear at the outset that the "problem" of sex discrimination in the workplace is essentially the problem of employers discriminating against women. This is especially true around the issue of pregnancy and maternity where there is a wealth of evidence showing the career disadvantages suffered by women who take maternity leave. We need to bear this in mind when looking at the case of Ali v Capita Customer Management Ltd ET/1800990/2016, in which a male employee claimed direct sex discrimination because his employer refused to match the enhanced maternity pay given to women when he wanted to take shared parental leave. The case is important because, if the decision is upheld, it will have a profound effect on how employers approach maternity and shared parental leave.

Mr Ali's wife had post-natal depression and had been advised to return to work in order to aid her recovery. He therefore wanted to take shared parental leave at the earliest possible opportunity. His employer's policy was to pay women who took maternity leave their full salary for 14 weeks, after which they continued on statutory maternity pay for 25 weeks. For shared parental leave, however, the employer offered only the statutory minimum rate of pay. That meant that, once Mr Ali had taken two weeks of paternity leave (which was fully paid), any further leave he took would involve a substantial reduction in pay. He claimed that refusing to pay him the same as a mother taking maternity leave was direct sex discrimination - and the employment tribunal agreed.

Will that finding be upheld on appeal? My view is that this is unlikely, because of two main problems with the tribunal's decision. First, it does not seem to me that sex was the reason that Mr Ali was denied fully paid leave. There is no suggestion that a female employee whose partner had just given birth would have been treated any more favourably. As the employer put it, his position could not really be compared to that of a woman who qualified for maternity leave, because he had not given birth. The tribunal dealt with this point by ruling that the fact that Mr Ali had not given birth was not a "relevant factor" that distinguished his case from that of a woman. Once the two-week compulsory leave period was over, he was in the same position as a woman who had actually given birth.

This surely misses the point. The fact that Mr Ali had not given birth must be a "relevant factor" if it is the actual reason for the treatment complained of. What the tribunal seems to be saying, however, is that, because giving birth is "sex-specific", any treatment based on the fact of giving birth must amount to direct sex discrimination.

I don't see how that approach can stand given the decision of the Supreme Court in Onu v Akwiwu and another; Taiwo v Olaigbe and another [2016] IRLR 719 SC. The issue in that case was the mistreatment of migrant domestic workers. In their direct race discrimination claims they argued that they were exploited because of their migrant status, which was a "function" of their nationality. The Supreme Court held, however, that migrant status and nationality - although linked - are not the same thing. Treatment based on a factor linked to a protected characteristic amounts to direct discrimination only if the link is so strong that it corresponds exactly with having or not having the characteristic.

Taking this approach, giving birth is of course a sex-specific event, but the same cannot be said for not giving birth. Men do not give birth, but the same is also true of many women. The employer in Mr Ali's case would have treated the female partner of a woman who had given birth in exactly the same way. Sex was simply not the reason that Mr Ali's request for enhanced pay was turned down.

The other problem with the tribunal's decision is that - even if this is a case of direct sex discrimination - the more favourable treatment of employees in connection with pregnancy or childbirth is specifically allowed under s.13(6)(b) of the Equality Act 2010. The tribunal rejected the employer's reliance on this exception, pointing to the Employment Appeal Tribunal (EAT) ruling in Eversheds Legal Services Ltd v de Belin [2011] IRLR 448 EAT. In that case the EAT held that the exception does not apply to treatment that goes beyond "what is reasonably necessary to compensate [women who give birth] for the disadvantages occasioned by their condition".

The tribunal said that the employer's policy of paying enhanced maternity pay for 14 weeks went beyond what was necessary. The two-week period of compulsory leave following the birth of the child was enough for the mother to recover from the experience of giving birth and paid leave beyond this point was disproportionate. The tribunal reached this conclusion because, while the introduction of shared parental leave had preserved the two-week compulsory maternity leave period, it had opened up the rest of the potential 12 months of leave to be shared with the other parent. The Government had taken a policy decision that special protection should apply to that initial two-week period, but there was no need for any special treatment for the rest of the maternity leave.

With respect to the tribunal, this is an absurdly limited view to take of what special treatment is appropriate. The fact that shared parental leave may, in theory, begin a mere two weeks after the birth of a child surely cannot mean that it is disproportionate to provide any special treatment for a female employee who has given birth in the last three months.

I would expect this decision to be reversed on appeal. If that does not happen, we should be worried about the consequences. I doubt the result would be employers increasing the paid leave given to men. It is much more likely that they will level benefits downwards, with less pay being given to women who have given birth. Enhanced maternity leave is something that employers can use to go some way towards levelling the playing field for women in the workplace. This is the sort of case that puts that under threat.

perspective@xperthr.co.uk