News and Events

Shared Parental Leave: Failure to Enhance is not direct sex discrimination

  • Posted

Is failing to enhance shared parental leave pay in line with enhanced maternity pay direct sex discrimination?

No, held the EAT in Capita v Ali.

The EAT held that the tribunal erred in their conclusion that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare. The purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave. The EAT held that the father's situation was not comparable to a woman on maternity leave. 

The purpose of shared parental leave is different from that of maternity leave/pay. The EAT noted that shared parental leave is given on the same terms for both men and women. There is therefore no direct discrimination when a higher level of maternity pay is given than would be given to either sex on shared parental leave. The EAT held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.

Thanks to Jennie Hargrove for preparing this case summary.