Is it sex discrimination to pay a male employee on shared parental leave lower pay than a woman would receive on maternity leave?

19th May 2021

Is it sex discrimination to pay a male employee on shared parental leave lower pay than a woman would receive on maternity leave?

Direct discrimination arises where an employer treats an employee (A) less favourably than other employees because of A’s sex. A female employee claiming direct sex discrimination would have to demonstrate that she was treated less favourably than a male comparator (real or hypothetical) whose circumstances were not materially different to her own.

The Court of Appeal decided in Ali v Capita Management, that a male employee on shared parental leave was not able to compare himself to a female employee on maternity leave who was paid a greater amount than he was. This is because the purpose of maternity leave isn’t just about providing the opportunity to provide childcare; it also has a vital role in protecting the health and wellbeing of pregnant employees and those who have recently given birth.

Mr Ali’s circumstances were therefore materially different to his comparator’s. The correct comparator would have been a female employee on shared parental leave. The Employment Appeal Tribunal has recently considered a very similar case. This case involved a man who wanted to take shared parental leave and who sought to compare himself with a woman taking adoption leave.

In Price v Powys County Council, Mr Price wanted to take shared parental leave to enable his wife to return to work earlier. He was informed that he would receive shared parental leave pay. Under Powys County Council’s policies, employees who took statutory maternity or adoption leave were entitled to receive enhanced pay. Mr Price chose not to take the leave. He commenced proceedings for direct discrimination. He sought to compare himself with female employees on statutory maternity and adoption leave.

Relying on Ali the employment tribunal held that the chosen comparators’ circumstances were materially different. Ali had established that the purpose of shared parental leave was materially different to statutory maternity leave. However, it went on to say that the circumstances of an employee on adoption leave were also materially different. Adoption leave, it said,  also goes further than allowing for childcare; it is designed to allow new parents to form a bond with the child and take steps to create a safe environment for them. At the latest, adoption leave begins on the day of adoption and can only be taken in one continuous block of 26 weeks. Shared parental leave, on the other hand, could be taken on a much more flexible basis and demonstrated its purpose in giving parents greater choice about childcare responsibilities. The Employment Appeal Tribunal said the correct comparator was a woman on shared parental leave. Given that she would receive the same pay as Mr Price no direct sex discrimination arose.

This decision isn’t surprising in view of the previous Ali case and sends a clear signal that the tribunals and courts are seeking to prevent opening the floodgates.

If you’d like further information about shared parental leave and/or sex discrimination, please contact Marie Allen, Head of Employment, on 01473 298133 or by email to [email protected].

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