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Is a failure to enhance Shared Parental Leave direct discrimination?

Many employers have enhanced maternity pay for female employees, but do not replicate this within shared parental leave – which can be taken by male employees. The EAT have determined that an employer’s decision not to pay enhanced shared parental leave to a male employee (in circumstances where it paid enhanced maternity leave to female employees) was not direct sex discrimination.

In Capita Customer Management Limited v Ali the EAT overturned a tribunal judgment where the Claimant sought to take shared parental leave (in part – due to his wife suffering from post-natal depression). His employer advised him that he could take shared parental leave, but that it was not enhanced in the same manner as maternity leave. The Claimant issued a tribunal claim – alleging that this was direct discrimination using a woman taking maternity leave as his comparator. The Tribunal upheld his claim.

The EAT overturned this decision. It determined that the purpose of maternity leave was the health and wellbeing of the mother. It differentiated this from shared parental leave, where the purpose was the care of the child. The EAT therefore determined that these were not comparable and that the appropriate comparator for Mr Ali would be a woman on shared parental leave and determined that she would have been given the same treatment (i.e. her shared parental leave would not have been enhanced) – therefore there had not been direct discrimination.

Before too much comfort is taken, the EAT did suggest (as an aside) that after 26 weeks of maternity leave, the purpose of maternity leave may change to the care of the child (and therefore there is a comparison at this stage that may be more beneficial to male employees). Additionally, the tribunal was not considering an indirect discrimination claim – which arguably would have been stronger. It is unlikely that we have seen an end to challenges in this area.

If you have any queries relating to Parental Leave, Flexible Working, Contracts or Grievances, please speak to your HR Consultant before taking any action. If you need HR advice or support please call 01924 827869.

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