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Case Law - Shared Parental Leave: Failure to Enhance Pay is NOT direct sex discrimination

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Capita v Ali

 

Failing to enhance shared parental leave pay in line with enhanced maternity pay is NOT direct sex discrimination, the EAT decided.
 

Comparing the PURPOSES for both maternity leave / pay and shared parental leave / pay was key in its decision.
 

The EAT held in this case 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.

 

Implications for Employers

 

If you already offer enhanced maternity pay (normally only the domain of larger organisations anyway), there is NO requirement to provide enhanced shared parental pay.


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