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Enhancing maternity pay and paying statutory shared parental leave is not discriminatory

In a landmark ruling, the Court of Appeal has stated that employers can enhance maternity pay while only offering statutory pay to workers on shared parental leave (SPL).

Capita and Leicestershire Police are the latest employers involved in a court battle over their parental leave policy. For the first 14 weeks of maternity leave, women were entitled to full pay at Capita. This was followed by 25 weeks of statutory maternity pay. At Leicestershire Police, women were allowed 18 weeks’ full pay and 39 weeks of lower rate statutory maternity pay. Both companies operated a similar policy with regards to SPL; that those parents who took SPL were only entitled to statutory rates.

Madasar Ali claimed Capita directly discriminated against him by paying him less than a woman on maternity leave. Ali argued that while the first two weeks of compulsory maternity leave were necessary for a mother following childbirth, to remain on maternity leave - rather than changing to SPL - was a ‘choice’ about providing care. Ali believed there should not be a ‘financial incentive’ for the birth mother to stay at home.

Beyond the statutory two weeks, the judges ruled that the primary purpose of maternity leave was not about childcare, but instead, about giving the mother time to recover from birth.

Anthony Hextall argued that Leicestershire Police had a policy which paid women on maternity leave more than those who chose to take SPL and believed this to be discriminating against men. Hextall stated that gender equality clauses should take into account paying men the same rate as a police officer who takes maternity leave.

Leicestershire Police argued that Hextall’s complaint was about equal pay to which the court agreed the issue was about the inequality of terms instead of indirect discrimination. The court ruled that there was not an equal pay case to be made as the law allowed employers to make exceptions for those who are pregnant, have recently given birth or who are breastfeeding. While the claim can only be about equal terms or discrimination, the court found the indirect discrimination claim to be invalid for similar reasons to Ali’s claim; that SPL is not comparable with maternity leave.

The court ruled there was ‘nothing unusual’ about either company’s parental leave policy.

Jane van Zyl, chief executive of Working Families, concluded:

“A ruling of sex discrimination would have undermined the essential protection afforded to women on maternity leave, and could have resulted in employers reducing maternity pay.

“The distinct disadvantage that women face in the workplace having experienced pregnancy and childbirth must continue to be recognised in law. Because maternity leave is designed to protect women’s health and wellbeing, it cannot simply be equated with ‘childcare’.”

Contact our Maternity and Pregnancy Discrimination Lawyers Hertfordshire & London

Lloyd Donnelly solicitors are experts in pregnancy rights for employees in the UK. If you have been discriminated against because of your pregnancy, are looking for guidance on maternity pay, or have been made redundant whilst on maternity leave, get in touch with one of our qualified employment lawyers today via the online enquiry form.

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