Failure to pay male employee enhanced shared parental pay = sex discrimination?

May 2018

By Osborne & Wise

The short answer is no. In Capita Customer Management Ltd v Ali and another UKEAT/0161/17, Mr Ali alleged that he should have received enhanced shared parental pay, given that a woman on maternity leave would have received enhanced maternity pay. The Employment Appeal Tribunal held that Mr Ali’s situation was not comparable to a woman on maternity leave given that the purpose of maternity leave and pay is different to the purpose of shared parental leave and pay. The correct comparator was, therefore, a woman who was on shared parental leave and who would have received the same shared parental pay as Mr Ali. In addition, more favourable treatment to women on maternity leave was a lawful exception under the legislation.

It is of interest that the tribunal’s reasoning was based on its finding that the primary purpose of maternity leave and pay is the health and well being of the mother, not in order to care for the child. Given the changing roles of men and women in relation to childcare and the encouragement for fathers to take a greater role, this may be regarded as out of step with current thinking. Infact the tribunal itself envisaged that the situation might be different after the first 26 weeks of leave, at which point it might be possible to draw a comparison between a father on shared parental leave and mother on maternity leave. We would suggest that the position in this area is quite fluid and organisations seek legal advice before introducing such schemes with differing rates of maternity/shared parental pay, in order to reduce the risk of possible discrimination claims.