No discrimination where special treatment is afforded to women in connection with pregnancy or childbirth
Shared parental leave and maternity leave
Our clients often comment that the take up of shared parental leave (SPL) has been very low in their organisations since it became available in 2015. The Government estimates that under 10% of eligible fathers have taken SPL. One reason for this may be the incentive for women to take full advantage of maternity leave (rather than sharing leave with their partners) and the better levels of maternity pay offered by employers as opposed to SPL pay.
We are often asked whether there is a risk of discrimination claims from men whose female colleagues can choose more favourable terms if they opt for maternity leave. Two cases on this question have been working their way through the courts and have recently been considered in the Court of Appeal.
The Court of Appeal has ruled that paying more to women on maternity leave than men on SPL is not discriminatory on the ground of sex, whether the claim is one of direct discrimination, indirect discrimination or an equal terms claim.
The case of Mr Ali
Mr Ali's female colleagues were entitled during maternity leave to 14 weeks’ on full pay and 25 weeks’ statutory maternity pay. Male employees were entitled to 2 weeks’ ordinary paternity leave on full pay followed by up to 26 weeks’ additional paternity leave with no guaranteed pay (under the old statutory regime). Mr Ali took his two weeks’ paid paternity leave and explored the option of his new statutory right to shared parental leave (SPL). His employer informed him that he could take SPL but would only be paid statutory shared parental pay (SSPP). Mr Ali brought claims of direct sex discrimination, indirect sex discrimination and victimisation in the Employment Tribunal.
Interestingly, the Tribunal initially found that he had been directly discriminated against. It decided that he could compare himself with a hypothetical female on maternity leave after the initial two week compulsory maternity leave. Under the Equality Act 2010, no account is to be taken of "the special treatment afforded to women in connection with pregnancy or childbirth" when deciding on a man’s sex discrimination claim. But the Tribunal decided enhanced maternity pay after the initial two weeks was not in connection with pregnancy and childbirth. Rather it was in connection with caring for a new-born baby (“which role is not exclusive to women”).
The EAT disagreed. It noted that the right to maternity leave and pay and the right to SPL and pay spring from two different European directives which have different purposes. The Pregnant Workers Directive (the source of maternity leave and pay rights) has the primary purpose of protecting the health and wellbeing of the mother during pregnancy and period following birth. This directive requires member states to provide a minimum of 14 weeks’ paid maternity leave. The Parental Leave Directive (the source of SPL rights) on the other hand is focused on care for the child and does not require member states to provide for pay during shared parental leave.
The EAT decided that the correct comparator for the direct discrimination claim was a woman on SPL and not a woman on maternity leave. A woman on SPL would have been offered pay at the same rate as Mr Ali and so he had not been treated less favourably.
The case of Mr Hextall
Mr Hextall is a police officer whose female colleagues are entitled to enhanced maternity pay of 18 weeks’ full pay. Mr Hextall took three months’ SPL and was paid only at the statutory rate. He brought direct and indirect sex discrimination claims in the Employment Tribunal.
The Tribunal reasoned that he could not compare himself to a woman on maternity leave and that the correct comparator is a woman taking SPL (who would have been paid SSPP only). The Tribunal decided that, even if Mr Hextall could compare himself with a woman on maternity leave, this would fall under the exception for special treatment of a woman in connection with pregnancy and childbirth. The Tribunal also dismissed Mr Hextall's indirect discrimination claim.
The EAT held that the tribunal was wrong on two counts on the indirect discrimination claim. First, the tribunal had confused the issue of deciding on a comparator for the purposes of the direct discrimination claim with the process of identifying a pool for comparison for the indirect discrimination claim. Secondly, it should not have found there was no disadvantage to men simply because the policy on SPL was the same for both men and women. The tribunal should have sought to identify any disadvantage to men inherent in the policy.
The Court of Appeal decision
The Court of Appeal agreed that the correct comparator for the purpose of a direct discrimination claim was not a woman on maternity leave, but a woman on SPL and so there could be no direct discrimination. It reiterated that maternity leave has a special purpose connected to the health and safety of a mother who has given birth and her special bond with the new-born child. Its purpose is not predominantly to facilitate child care. The Court was of the view that there were a number of differences between SPL and maternity leave: maternity leave is compulsory for the first two weeks, can begin before birth and is an immediate entitlement even where there was no child to look after. SPL on the other hand is optional, can only be taken after birth and when there is a child to look after and is dependent on the mother choosing to give up statutory maternity leave.
For the indirect sex discrimination claim to succeed, the claimant and other men must be disadvantaged by the policy when compared to women in the same material circumstances. The Court of Appeal made clear that women who had given birth and who were on maternity leave were not in the same circumstances as men who were on SPL. There was no disadvantage to Mr Hextall from the policy when he was compared with those in the same circumstances.
The Court of Appeal ruled that Mr Hextall's claim was an equal terms claim relying on the implied sex equality clause arising from the Equality Act 2010. That is, he was arguing that his female colleague's more favourable terms regarding her entitlement to take time off to care for her new baby were included in his contractual terms. The Court ruled however that Mr Hextall's claim could not succeed because of the exception set out in the Equality Act 2010 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".
Following the EAT decision in these two cases, there had been some speculation that a man might succeed in a direct discrimination claim where enhanced maternity pay was paid after 14 weeks of maternity leave (the end of the EU protected period) or after the end of ordinary maternity leave in the UK (26 weeks). Commentators also suggested that a man might succeed in an indirect discrimination claim, arguing that he is disadvantaged by not having the choice between enhanced maternity pay and SSPP (where that choice is open to female employees who have given birth).
This case, however, suggests any such claims would be unlikely to succeed. Although many fathers are now taking a primary caring role with their new-born babies, the Court of Appeal was clear that the relatively new shared parental leave rights were not intended to undermine the special protections available to women in connection with pregnancy and childbirth.
It has been reported that both Mr Ali and Mr Hextall are seeking permission to appeal their cases to the Supreme Court.
This is clearly an area in which societal norms are changing. A recent survey found that 76% of millennial fathers would put their children’s childcare needs above taking a new job or promotion. Work/life balance and the gender pay gap are key issues for employers, the UK Government and the EU. It will be interesting in the future to see whether enhanced rights for fathers who take a caring role will begin to level out the playing field, both in the home and in the workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.