The Employment Appeal Tribunal has held that failure to pay a male employee enhanced Shared Parental Pay was not sex discrimination.

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The employee, in this case, came to work for his employer following a TUPE transfer. Transferring female employees were entitled to maternity pay comprising of 14 weeks basic pay followed by 25 weeks’ SMP. Transferring male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which ‘may or may not be paid’.

Following the birth of his daughter, the employee took two weeks’ paid leave. He wanted to take further leave to look after his daughter and asked his employer about his rights. The employer told him that he was eligible for Shared Parental Leave, but that they only paid statutory ShPP. He brought a grievance asserting that he should receive the same entitlements as a transferring female employee taking maternity leave, which was rejected. He then brought a tribunal claim alleging direct and indirect sex discrimination.

The tribunal ruled in his favour in relation to the direct discrimination claim but dismissed his indirect sex discrimination claim. It said that he could compare himself with a hypothetical female employee taking leave to care for her child after the two week compulsory maternity leave period.  It said that it was irrelevant that he had not given birth as he was not comparing himself with a woman who had given birth but with one who was taking leave to care for her child after the end of the compulsory maternity leave. The tribunal could not see why any preferential treatment for women should apply beyond the two week compulsory maternity leave period.

Failure to pay ShPP

The employer appealed. Allowing the appeal, the Employment Appeal Tribunal said that the tribunal’s conclusion depended on its incorrect finding that the purpose of maternity leave and pay is to provide for the care of the child. It said that there is a clear distinction between the rights given to pregnant workers and those who have given birth or are breastfeeding, and the rights given to the parents of either sex to take leave to care for their child. It said that the purposes of the two sets of rights are different, as are the circumstances of those to whom they are given.

It said that the primary purpose of the Pregnant Workers Directive is the health and wellbeing of the pregnant and birth mother and it requires member states to provide a minimum of 14 weeks’ maternity leave paid at least at the same level as statutory sick pay. The Parental Leave Directive, however, it said focuses on the care of the child and makes no provision for pay.

For this reason, it said, the tribunal’s finding that the purpose of the statutory maternity leave and pay given to a woman after the compulsory first two weeks is for the care of the child did not accord with the purpose of the Pregnant Workers Directive. It said that the correct comparator could not be a woman on maternity leave. It’s view was the correct comparator would be a woman on SPL, who would have been given SPL on the same terms as the employee, in this case, received. This meant that he was not discriminated against on the ground of sex.

As an aside, the Court noted that it may be that after 26 weeks the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child, and it may at that point be possible to draw a valid comparison between a father on SPL and a mother on maternity leave. It did not make a ruling on this point but said that a claim based on such facts may well involve such a comparison.

Case reference: Capita Customer Management Limited v Ali and another