Last reviewed 10 October 2017

In this feature, Lynda Macdonald, freelance employment law advisor and trainer, looks at whether it is discriminatory for an employer who grants enhanced pay to women on maternity leave not to grant the same benefit to men on shared parental leave.

When shared parental leave was introduced in April 2015, the Government stated that there was no requirement for employers who offered enhanced maternity pay to female employees to introduce similar enhancements to shared parental pay. It may, however, be advisable not to rely on the Government’s stance as the position under the Equality Act 2010 is not entirely clear-cut and courts and tribunals may well take a different view.

Where female employees have a contractual entitlement to be paid full or part salary during all or part of their maternity leave, it may be advisable for the employer to grant both male and female employees on shared parental leave equivalent enhanced benefits. This is because it could potentially be argued that not granting men on shared parental leave the same enhanced benefits as are afforded to women taking maternity leave amounts to sex discrimination. Such arguments have already been presented to employment tribunals with partial success.

The case of Shuter v Ford Motor Co Ltd ET Case No. 3203504/13 concerned a male employee taking additional paternity leave (the predecessor of shared parental leave). The case is nevertheless directly relevant to the argument. Mr Shuter was paid the statutory rate of pay while on additional paternity leave, while female colleagues taking maternity leave were paid full pay. This was part of the employer’s commitment to improve gender diversity as the make-up of the workforce was strongly male-dominated. Mr Shuter brought claims of both direct and indirect sex discrimination to an employment tribunal on account of this disparity. In respect of the claim for direct sex discrimination, the tribunal held that it was impermissible for a man on additional paternity leave to compare his treatment with that of a woman on maternity leave — the correct comparator was a woman taking additional paternity leave who, like Mr Shuter, would not have been entitled to enhanced pay.

In respect of the claim for indirect sex discrimination, however, the tribunal ruled that the employer’s policy of providing full pay to women on maternity leave (but not to men on additional paternity leave) had a disproportionate adverse impact on men generally, and put Mr Shuter personally at a disadvantage. Despite this, Mr Shuter’s claim failed — but only because the indirectly discriminatory effect was justified in the particular circumstances. The employer was able to demonstrate that its policy of paying enhanced benefits to female employees on maternity leave was appropriate and necessary with a view to achieving the legitimate aim of recruiting and retaining women in a strongly male-dominated working environment.

The decision in the Shuter case was very fact-specific as the rejection of the complaint was based on the fact that the particular employment was one in which women made up only a small minority of the workforce and the employer’s policy of offering enhanced benefits to employees taking maternity leave in order to seek to recruit and retain more women was considered legitimate.

Turning to the position of employees on shared parental leave, it can be argued that the circumstances of a man on shared parental leave compared to those of a woman on maternity leave are much more similar now than was the case under the additional paternity leave regime. Men and women can take shared parental leave from two weeks after the date of their baby’s birth and the right to shared parental leave does not depend on the mother returning to work. It is — arguably — feasible that a claim for direct sex discrimination from a male employee could succeed where his employer offered enhanced benefits to women on maternity leave but not to employees on shared parental leave.

Even if a claim for direct sex discrimination in these circumstances was to fail, a male employee on shared parental leave who is denied contractual benefits available to female employees on maternity leave could potentially make out a good argument for indirect (as opposed to direct) sex discrimination. He could argue that a policy of granting enhanced benefits only to women on maternity leave places more men than women at a disadvantage — because women in these circumstances have the choice either to remain on maternity leave (with enhanced benefits) or switch to shared parental leave (without enhanced benefits) while men only have the option to take shared parental leave (without enhanced benefits). Thus, a claim for indirect sex discrimination could possibly be established on the basis of disproportionate impact.

If such a case was brought, the employer would need to have objective justification for not conferring enhanced benefits on employees taking shared parental leave. In the Shuter case, the justification was based on the fact that the employer in question had a very low proportion of female employees and so had proper reasons for seeking to encourage the recruitment and retention of women in the workforce. That justification would not be available to employers whose workforce consisted of roughly the same numbers of men and women.

To date, tribunals have taken divergent views on whether granting enhanced benefits to women on maternity leave but not to men on shared parental leave amounts to sex discrimination. In Hextall v Chief Constable of Leicestershire Police ET Case No. 2601223/15, the tribunal held that a man taking shared parental leave cannot legitimately compare his treatment with that of a woman on maternity leave — the correct comparator is a woman taking shared parental leave (the same finding as in Shuter above). A key reason for this conclusion was the provision in the Equality Act 2010 (section 13(6)(b)) which states that men cannot complain of sex discrimination on account of special treatment afforded to women in connection with pregnancy or childbirth.

In the subsequent case of Ali v Capita Customer Management Ltd Case No. 1800990/16, however, the tribunal took the opposite view and upheld a male employee’s claim of direct sex discrimination because his employer declined to pay him enhanced shared parental pay in circumstances where female colleagues on maternity leave were contractually entitled to enhanced maternity pay. Mr Ali successfully argued that after the first two weeks of a woman’s maternity leave (known as “compulsory maternity leave”), the position of a father is comparable to that of the mother in that any leave taken is for the purpose of caring for the child. The exemption allowing for special treatment of women in connection with pregnancy or childbirth contained in section 13(6)(b) of the Equality Act, he argued, no longer applies in respect of the subsequent leave periods. The tribunal upheld Mr Ali’s claim of sex discrimination, accepting that the comparison between him and a female employee taking maternity leave to care for her child after the two-week compulsory leave period was valid. This decision contrasts with that in the Hextall case — however it is understood that both cases are on appeal and so we have certainly not heard the final word on these arguments yet.

The question of whether it is discriminatory for an employer to grant enhanced maternity pay but not enhanced shared parental pay remains wide open. As yet, there is no binding authority on the matter and so employers can choose to “wait and see”, alternatively they can play safe and adjust policies to ensure that any contractual enhancements to maternity pay and shared parental pay are brought into line.