Is it discriminatory to pay men taking shared parental leave less than women taking maternity leave?
In the combined appeals of Hextall v. the Chief Constable of Leicestershire Police, and Capita Customer Management Limited v. Ali, the Court of Appeal had to determine whether it is sex discrimination or a breach of the equality clause for an employer not to pay a man who takes shared parental leave at the same rate as a woman on maternity leave.
In the case of Capita Customer Management Limited v. Ali, Mr Ali took two week’s paternity leave in February 2016 and then sought additional time off in order to care for his child.
During that period, he believed that he was entitled to the same rate of maternity pay as his female colleagues, but his employer maintained that he was only entitled to shared parental leave at the statutory rate.
Mr Ali claimed direct sex discrimination and was successful before the Employment Tribunal. However, his employer appealed this decision and it was overturned by the Employment Appeal Tribunal.
In the case of Hextall v. the Chief Constable of Leicestershire Police, Mr Hextall took shared parental leave between June and September 2015. He was also paid at the statutory rate. Mr Hextall complained that policy placed men at a particular disadvantage and was therefore indirectly discriminatory. Mr Hextall was unsuccessful in the Employment Tribunal and only partially successful in the Employment Appeal Tribunal.
Mr Ali and Mr Hextall then appealed to the Court of Appeal which rejected both cases on the basis that shared parental leave is not comparable to maternity leave.
The Court of Appeal found the correct comparators in both cases were women also taking shared parental leave and not those on maternity leave. As those comparators would also receive the statutory rate of pay, the claims could not be upheld. Mr Hextall sought permission to appeal further to the Supreme Court but his application was refused.
Therefore, it is not discriminatory for employers to operate both enhanced maternity pay and statutory shared parental leave pay policies.
Joanne Galbraith-Marten
RCN Head of Legal (Employment)
More information
You can read more about shared parental leave in our maternity toolkit.
Arrangements for shared parental leave and pay will differ depending on your employer’s policy. If you need advice, you can contact RCN Direct.
In April last year, improvements to shared parental leave entitlements for NHS staff in England and Wales were introduced. The RCN contributed to guidance from NHS Employers about these improved entitlements. To download the guidance, visit NHS Employers’ website.
