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In Capita Customer Management v (1) Ali (2) Working Families (Intervenor), UKEAT/0161/17/BA, the Employment Appeal Tribunal (EAT) considered whether an employer’s decision to pay enhanced maternity pay – but only statutory pay for shared parental leave – was direct sex discrimination.

Mr Ali sought to argue that, after the first two weeks of maternity leave, the purposes of time off was no longer directly linked to pregnancy but rather to the requirements of childcare; therefore not to pay him an amount equal to a mother on maternity leave was direct sex discrimination. The tribunal did not accept that a mother on maternity leave was a direct comparator.

The EAT found that the purpose of maternity leave (and related pay) is to safeguard the health and wellbeing of a pregnant woman, who has recently given birth and is breastfeeding. In contrast, the purpose of Shared Parental Leave (and related pay) is to allow the beneficiary of that leave time to care for a child. Therefore, the correct comparator for a man taking Shared Parental Leave is a woman on Shared Parental Leave, not a woman on maternity leave following the initial two weeks of compulsory leave.

Further, the tribunal went on to find that enhanced maternity pay falls within the section 13(6)(b) of the Equality Act 2010, which states that it is not unlawful to afford special treatment to a woman in connection with pregnancy or childbirth.

It is worth noting that, in this case, enhanced maternity pay was payable for a period of 14 weeks. The judgment did indicate that there would be difficulty defending a difference in enhanced maternity pay that ran for a longer time, e.g. 26 weeks.

Finally, this case does not consider whether a policy of paying enhanced maternity pay but only statutory Shared Parental Leave pay could be indirect sex discrimination. This point has been considered in the case of Hextall v The Chief Constable of Leicestershire Police. The EAT found that the first instance the tribunal had erred in its decision making on this point and has therefore sent the case back to the Employment Tribunal for the matter to be considered afresh.

For more information on Shared Parental Leave or any of the other issues raised in this article, please contact by Sarah FitzGerald in the Leeds Employment team by emailing [email protected] or calling 0113 212 6024.