19 April 2018

In this case Mr Ali, a father, wished to take shared parental leave so that his wife could go back to work. He argued that it was unlawful direct sex discrimination to pay him less than he would receive if he had been on maternity leave.

The Employment Tribunal had initially upheld his claim but this was overturned on appeal. The Employment Appeal Tribunal held that the Employment Tribunal had erred in their conclusion that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare. The purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave.

The Employment Appeal Tribunal held that the father's situation was not comparable to a woman on maternity leave. The Employment Appeal Tribunal noted that a mother will care for her baby, but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon, and is inseparable from, the type of leave taken. Shared parental leave is given on the same terms for men and women.

The purpose of shared parental leave is different from that of maternity leave. Given shared parental leave was given on the same terms for both men and women there was no unlawful direct discrimination when a higher level of maternity pay is given than would be given to either sex on shared parental leave.

The Employment Appeal Tribunal also held that payment of maternity pay at a higher rate is also permitted under the Equality Act 2010 as special treatment afforded to a woman in connection with pregnancy or childbirth.

Shared Parental Leave and Shared Parental Pay is a complex area of law and one that is not often considered. ACAS has provided excellent guidance on the legal and practical aspects of this area of employment law which can be found here. The case reminds employers and employees of the need to ensure equality within the workplace and of the difference between maternity leave and other family friendly provisions.

Employers should consider their family friendly policies and procedures in this area. In addition to the strict legal provisions, the impact upon workplace relations and culture in this area cannot be underestimated.

As ever, give your BTO employment law expert a call to help you navigate the issues in this area.

The full judgment can be read here

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