Tue 25 Feb 2020

Maternity pay - 1: Shared parental pay - 0

It's game over for those arguing that enhancements to maternity pay need to be replicated with shared parental pay

One of the most anticipated judgements of 2019 was the Court of Appeal decision in the case of Hextall v Chief Constable of Leicestershire Police.   Hextall was heard together with Ali v Capita Customer Management Ltd.  Both cases concerned claims brought by male employees that their employer's failure to enhance shared parental pay to match the enhancements made to maternity pay were discriminatory.  
The Court of Appeal held that paying men on shared parental leave less than women on maternity leave  was not discriminatory.  The appropriate comparator for a man on shared parental leave was a woman on shared parental leave and not a woman on maternity leave.  As a woman on shared parental leave would have been paid the same as a man the direct sex discrimination claim brought by Mr Ali was unsuccessful.  Although Mr Hextall's case was rightly categorised as an equal terms claim, the Equality Act states that "a sex equality clause does not have effect in relation to the terms of work affording special treatment to women in connection with pregnancy or childbirth". As such, his claim also failed.  
An indirect discrimination claim would also have failed because a woman on maternity leave was not a valid comparator for a man on shared parental leave.   In any event, the Equality Act prevents indirect discrimination claims being brought where there is an equal terms claim so it couldn't proceed.
Mr Hextall had lodged an appeal to the Supreme Court.  However, permission for the appeal to proceed has been denied, so the Court of Appeal judgement stands.  In short, employers can enhance maternity pay without enhancing shared parental pay without fear of discrimination claims.

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