UK: UK Supreme Court Confirms Divergence In Pay For Maternity And Parental Leave Does Not Discriminate Against Men

The Supreme Court of the United Kingdom has refused leave to appeal in the case of Chief Constable of Leicester v. Hextall. The claimant had sought leave to appeal the court of appeal's May 2019 ruling in the combined cases of Ali v. Capita Customer Management Limited and Chief Constable of Leicester v. Hextall, [2019] EWCA Civ 900.

In its decision, the court of appeal ruled that it was neither sex discrimination nor a breach of equal pay legislation for an employer to refuse to offer a male employee who had availed himself of the statutory right to take shared parental leave the same discretionary pay enhancement that the employer had offered a female employee taking maternity leave.

UK employees who take maternity leave or shared parental leave are currently entitled to statutory payments amounting to:

• 90 percent of the employee's average weekly wage for the first 6 weeks of leave; and
• either 90 percent of the employee's average weekly wage or £148.68 per week, whichever is the lower amount, for the subsequent 33 weeks of leave.

It is, however, common market practice for employers to offer discretionary enhancements to female employees' maternity pay, and some, but not all, employers have chosen to offer the same enhancements to male employees who take shared parental leave.

Employees who opt to take shared parental leave already need to follow a strict notice procedure in order to avail themselves of this right and employers may refuse requests for shared parental leave should employees.

The Supreme Court's refusal of leave to appeal—the final ruling in these proceedings—provides a measure of certainty to employers that choose not to offer pay enhancements to male employees taking shared parental leave that their approach does not breach equality legislation. Employers may nevertheless want to consider messaging issues, including previous statements they might have made about diversity and support for family life, before deciding whether to reduce pay enhancements for male employees. Whilst the legal risk of variance in enhanced pay for maternity and shared parental leaves has been reduced, there still may be risks to employee and public relations to be considered when implementing policies around family leave.

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