The recent Employment Appeal Tribunal decision in Capita Customer Management Ltd v Ali and another UKEAT/0161/17 confirms that an employer who offered 14 weeks enhanced maternity pay to mothers but only statutory shared paternal pay to male and female employees was not liable for direct sex discrimination.
Mr Ali was employed by Capita Customer Management (Capita), having been transferred from Telefonica. Following the birth of his child, Mr Ali took 2 weeks paternity leave. His wife was subsequently diagnosed with post-natal depression and was advised to return to work. Mr Ali therefore requested further leave to look after his daughter and was informed that he was only entitled to statutory shared parental pay.
On discovering that transferring female Telefonica employees were entitled to 14 weeks enhanced maternity pay, Mr Ali brought a claim against Capita stating that he should have the same entitlement as a female transferring Telefonica employee and that the disparity between offering statutory shared paternal pay and the enhanced maternity pay amounted to direct and indirect sex discrimination. The Employment Tribunal found in favour of Mr Ali, deciding that he could be compared to a transferred female employee taking care of the child after the compulsory 2 week maternity leave period. Capita appealed the decision.
The Employment Appeal Tribunal found in favour of Capita, deciding that a failure to match shared paternal pay with enhanced maternity pay will not amount to direct discrimination because the purpose of maternity leave is for the well-being and health of the mother rather than care of the child. Therefore a woman on maternity leave cannot be used as a direct comparator for a man on shared parental leave and instead the position should be compared to that of a woman on shared parental leave who, in this case, would be in receipt of the same pay.
In this case enhanced maternity pay was only provided for the first 14 weeks. This figure is key because it is also the minimum amount of time that a woman must be allowed to take as maternity leave under the Pregnant Workers Directive. Further, under the Pregnant Workers Directive maternity leave is intrinsically linked to the health of the mother as opposed to the care of the child. It is not clear whether any enhanced maternity leave pay beyond the 14 week period would need to be reflected in the shared parental pay offered, as it could be argued that the purpose of the leave from this point onwards is for the care of the child rather than the mother and so could be undertaken by either parent. Arguably after the initial 14 weeks a woman on maternity leave could be a valid comparator and so any distinction in pay could amount to discrimination.
Clarification is required to determine at what point maternity leave concerns care for the child rather than the biological needs of the mother and whether this would be limited to the 14 weeks prescribed in the Pregnancy Workers Directive. The intervenor in Ali v Capita, Working Families, suggested that the point where leave concerns solely care for, and bonding with, the child is at 26 weeks.
Therefore, if an employer’s enhanced maternity pay covers a period of 14 weeks or less then a claim for discrimination is unlikely to succeed, however if enhanced maternity pay is offered for a longer period then it is possible that a claim for discrimination could succeed, particularly if the period is longer than 26 weeks.