Ali v Capita Customer Management Limited; Hextall v Chief Constable of Leicestershire Police (CA)
The Court of Appeal has held that it was not discriminatory (either directly or indirectly) for an employer to pay male employees on shared parental leave less than the enhanced levels of pay (over and above statutory entitlements) available to female colleagues whilst on maternity leave.
This appeal involved two separate claims from employees who worked for Capita and Leicestershire Police respectively. Both employers operated policies whereby those who chose to take shared parental leave ("SPL") were paid at statutory rates only throughout, whereas female staff on maternity leave enjoyed a number of weeks' enhanced pay before their entitlements dropped to statutory levels. Between them, the Claimants brought claims on the basis that this disparity was both directly and indirectly discriminatory on the grounds of sex.
The Court of Appeal has now dismissed both claims. In particular, it considered that maternity leave and SPL entitlements are not comparable for the purposes of discrimination legislation; the latter relates to matters exclusive to the birth mother as opposed to broader childcare issues. The necessary "comparator", in relation to whom the claimant would need to show less favourable treatment for the purposes of a direct discrimination claim, would therefore be a female colleague on SPL as opposed to maternity leave and less favourable treatment would therefore not be established.
In relation to the indirect discrimination allegation, the CA concluded that this was precluded as a matter of statue on the basis that it was, in reality, a claim under the "sex equality" clause which is implied into his contract under the EqA. In essence, this was an equal pay claim and it failed because it is not unlawful for an employer to afford special terms to female employees in connection with pregnancy or childbirth. In any event, the CA considered that a claim for indirect discrimination would fail since the differential in benefits provided under the two schemes would be justified as a proportionate means of achieving a legitimate aim.
Employers may take comfort from the fact that this outcome suggests that they need not offer equivalent levels of pay or benefits under the terms of their maternity and shared parental schemes. Nevertheless, it appears that both claimants have applied for permission to appeal to the Supreme Court; it is therefore unlikely that this is the last we have heard of this issue.