Court of Appeal’s position on shared parental leave provides much-needed clarity, according to Mackrell Turner Garrett

Posted on Tuesday May 28, 2019

Donna MartinThe Court of Appeal has provided greater clarity on the pay of men during shared parental leave in a new landmark case.

Donna Martin, Head of Employment and Immigration at London law firm, Mackrell Turner Garrett, says the cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall will be important in guiding the future direction that employers take when resolving issues around shared parental leave pay.

The Court of Appeal heard the two appeals together put forward by claimants that stipulated that it was direct discrimination and against equal pay measures of the Equality Act 2010 to pay men differently during shared parental leave compared to their female counterparts when on maternity leave.

However, having heard the evidence, the Court decided it was not discriminatory to pay men the statutory minimum for shared parental leave when women received an enhanced payment on maternity leave.

Donna said that the case effectively revolved around key exceptions in the rules surrounding direct discrimination and equal pay.

“When it came to direct discrimination the court said that a men on shared parental leave (which is for childcare purposes) is not comparable to a birth mother on maternity leave who receives special treatment for health and safety purposes,” said Donna.

She said that the Courts believed that the physical impact of pregnancy and the subsequent birth was significantly greater on a mother than a father or partner, which meant that the period of leave and therefore the enhanced payment was not comparable.

Donna added: “When it came to the equal pay claims the legislation already recognises the impact of pregnancy and childbirth under the Equality Act 2010, which says that a ‘sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth’. It is for these reasons that the courts dismissed the claims.”

Donna said that since the introduction of shared parental leave in April 2015 there had been some confusion amongst employees and employers over the enhanced pay that new mothers received and whether something similar should be offered to male employees who decided to share leave with their partner.

“The ruling of the Court of Appeal should now give some clarity to those who have felt aggrieved or unsure about their entitlement in respect of parental leave,” she explained.

“While some individuals may still believe this is unfair, with the law as it currently stands it is now clear that employees on maternity leave can continue to be treated as a special case and so employers should be aware of this when making arrangements for shared parental leave.”