Shared parental leave: is it discriminatory to fail to offer enhanced pay?

Many campaigners have blamed this on a failure by employers to offer enhanced shared parental pay (SPP), while many businesses offer some form of enhanced maternity pay. It has also been unclear whether offering enhanced maternity pay but not offering enhanced SPP could amount to sex discrimination against male employees. Two recent cases in the Employment Appeal Tribunal (EAT) emphasise that this is unlikely to be direct sex discrimination but may be indirect sex discrimination requiring objective justification.

In Capita Customer Management Ltd v Ali and another, the EAT held that failure to pay a male employee enhanced SPP, in circumstances where women on maternity leave were offered enhanced pay, was not direct sex discrimination. The EAT considered that the purpose of maternity leave and pay is to protect the health and wellbeing of the mother; it is not solely to enable the mother to look after the child. As a result, the claimant, a father taking shared parental leave, could not compare himself with a mother on maternity leave for the purposes of bringing a direct discrimination claim.

By contrast, in the more recent case of Hextall v Chief Constable of Leicestershire Police, the employee successfully argued that the policy of enhancing maternity pay but not enhancing SPP was potentially indirect sex discrimination. However, the EAT did not go on to consider the employer's justification argument but sent the case back to the Tribunal – we will therefore have to wait for further guidance on justification.

Employers wishing to offer enhanced maternity pay but not enhanced SPP will need to consider their rationale for doing so carefully to assess whether a Tribunal would be likely to find that their policy is justified. Cost considerations alone will not be sufficient, but there may be other valid reasons justifying a difference in treatment. In a previous case, a Tribunal accepted that an employer's policy of paying full pay to women on maternity leave in order to recruit and retain women in a male-dominated workforce was objectively justified. However, that employer had substantial evidence of the effect of their policy; employers should seek advice about whether their policy is likely to stand up to similar scrutiny by a Tribunal.