Court of Appeal clarifies failure to pay enhanced shared parental pay to match enhanced maternity pay is not sex discrimination

Published on: 30/05/2019


We previously reported on the cases of Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police which left us with competing judgments on whether a failure to increase statutory parental pay to match enhanced maternity pay would be discriminatory on the grounds of sex.  

We now have appellate authority from the Court of Appeal in these cases (which were joined).  The Court held that there was no direct or indirect discrimination.  In relation to the argument of direct discrimination, the Court found that there were different purposes for the leave.  Maternity leave is “to protect a woman in connection with the effects of pregnancy and motherhood” and shared parental leave is related to “facilitating childcare by the child’s parents”.  The Court also held that the claim for indirect discrimination was wrongly categorised and should have been brought as an equal pay claim and highlighted that equal pay legislation does not allow comparisons with women on maternity leave.

This case provides welcome clarification on the law.  Employers should ensure that those who may receive enquiries on such leave and pay are aware of the principles in this case and that consistent messages are being provided to avoid any confusion.  



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