Paying you less for shared parental leave than a colleague gets for maternity leave usually isn’t discrimination.
“Employers can lawfully pay enhanced maternity pay without extending the same enhancement to shared parental pay.”
Getting less for shared parental leave than a colleague gets for maternity leave usually isn't discrimination, because the two forms of leave aren't treated as legally comparable.
- If your employer enhances maternity pay but pays Shared Parental Pay at the statutory rate only, that difference on its own is not usually unlawful discrimination.
- The reasoning is that the early weeks of maternity leave are treated in law as serving the mother's recovery and bonding with a newborn, not simply childcare, so a woman on maternity leave isn't the right comparison for someone on Shared Parental Leave.
- What the law requires as a minimum and what your employer chooses to offer on top of it are two different things, check your employer's own written family leave policy rather than assuming the law guarantees equal pay across all leave types.
The situation
Mr Ali worked for Capita, whose policy gave him 2 weeks' paternity leave at his normal pay but only the statutory rate for Shared Parental Leave, while birth mothers received enhanced pay for part of their maternity leave. His wife was recovering from postnatal depression, and he wanted an extended period of Shared Parental Leave so she could return to work sooner. He brought a claim of direct sex discrimination, arguing he should be paid the same as a woman on maternity leave.
What the court of appeal found
The Court of Appeal held that paying enhanced maternity pay while paying only the statutory rate for Shared Parental Leave is not direct or indirect sex discrimination, and does not breach the sex equality clause in the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a.... The reasoning turned on comparability: the early period of maternity leave is treated in law as serving the mother's recovery and health, not purely childcare, so a woman on maternity leave is not a valid like-for-like comparatorA comparator is someone in a similar situation to you but without your protected characteristic (for example, a different race, sex, or disability status), used to judge whether you were treated worse... for a man on Shared Parental Leave, which exists purely to let parents share childcare.
Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police. [2019] EWCA Civ 900. Court of Appeal. 2019. Permission to appeal to the Supreme Court refused.