Companies who offer women enhanced maternity pay but don’t offer the same package to men who take shared parental leave are not liable for discrimination, according to a pair of recent cases, ruled on together by the UK’s Court of Appeal.
The cases related to two men whose employers offered women enhanced maternity pay on top of the statutory minimum, but paid shared parental pay at the statutory rate of £145.18 a week. Both men claimed that being denied the amount a new mother in their position would be paid constituted sex discrimination.
The ruling sent a clear message to employers that maternity pay is different to shared parental pay, and that any discrepancy caused by enhanced maternity pay is unlikely to be considered discrimination by the courts in the future.
Shared parental leave was introduced in 2015 with big goals: to enable “working parents to share the care of their children” by encouraging fathers to provide more childcare. In practice, it made 50 of the 52 weeks of maternity leave transferable to eligible fathers. But in 2018, the government estimated that fewer than 2% of eligible parents have taken any shared parental leave.
There are many reasons why take-up has been so low, including that many families cannot afford it. Under the statutory system, 38 weeks of shared parental pay is available at £145.18 a week and the final 12 weeks are unpaid. In contrast, statutory maternity pay includes six weeks paid at 90% of the mother’s income.
On top of this, 45% of employers also choose to enhance maternity pay, by offering longer or more generous periods of pay linked to a woman’s income. Some employers have also opted to enhance shared parental pay, such as the civil service which provides 24 weeks of shared parental leave at full pay. Still, such employers remain the minority, meaning that for most families, it makes financial sense for the mother to take the bulk of the leave.
Questions around discrimination
In the first of the two cases in the Court of Appeal’s recent ruling, Madasar Ali, who worked for Capita, argued that shared parental leave had changed the purpose of maternity leave. He accepted that the first two weeks of maternity leave are compulsory for women and remain related to recovery from childbirth, but argued that the remaining 50 weeks were now solely about childcare provision.
The court found this argument unconvincing and dismissed the appeal. It recognised a number of purposes for maternity leave in addition to caring for a child that are clearly only relevant to mothers. These included preparing, coping and recovering from pregnancy and childbirth, breastfeeding and developing “the special relationship between the mother and the newborn child”. The court found that women on maternity leave are in a materially different situation to men taking shared parental leave, and so, as the positions are incomparable, there can be no discrimination.
In the second of the two cases, Anthony Hextall’s claim was for indirect discrimination against his employer, Leicestershire Police. He argued that men were at a disadvantage compared to women because they were less likely to be able to take leave upon becoming parents. The court found that this was not an issue of discrimination, dismissing the claim on other grounds.
But the court did consider how Hextall’s case would have been decided if it hadn’t been dismissed – and found that it wouldn’t have been discriminatory. This was partly because of the materially different situations of men and women, as in Ali’s case. And even if it had been found that men and women were in the same situation, the court reasoned that different treatment would be justified – it would remain lawful to pay women on maternity leave more to support them during pregnancy and childbirth.
What this means for employers
As men are getting less shared parental pay than women, the practical implications of the appeals may initially seem unfair. Yet, the court was justified in promoting the protection of women in the workplace. Every year, 54,000 pregnant women are dismissed, made redundant, or treated so badly that they feel they have to leave their jobs.
If the court had found discrimination in these two cases, it could have made enhanced pay for mothers unaffordable for many employers. It’s likely many employers would have chosen to remove all enhancements for maternity pay to avoid liability if the court had found discrimination – which would have a negative impact on many women.
But the cases show that women require more than just financial support after childbirth. In the first case, Ali took shared parental leave after his wife’s diagnosis of postnatal depression and her doctor had encouraged her to return to work as part of her recovery. The court’s decision has effectively made this support unavailable for many families in the same situation because few men would be able to afford giving up their – still generally larger – wage.
The issues in both cases highlight that shared parental leave is not the appropriate legislative tool to promote men’s role in childcare. Instead, fathers need their own, standalone entitlement to an extended period of leave. For example, in Iceland three months of leave is made available to each parent, plus a final three months can be shared however the parents wish, paid at a rate related to their income. If the UK had a similar system, both men in these cases could have provided necessary childcare without suffering the financial repercussions – and it might actually encourage more men to take it up.