Enhanced shared parental pay
Wednesday 19th June 2019
The CA has held, in Ali v Capita Customer Management Ltd, that CCM’s failure to provide Mr Ali with enhanced shared parental pay was not discriminatory.
Mr Ali wanted to take SPL to care for his child and help his wife who was suffering from postnatal depression. However, he was deterred from doing so because he would only be paid at the statutory rate. Male employees who transferred to CCM under TUPE received 2 weeks of fully paid paternity leave. TUPE transferred female employees were entitled to 14 weeks of fully paid maternity leave.
Mr Ali argued that, in addition to 2 weeks of paid paternity leave, he should also be entitled to 12 weeks of paid SPL and that to provide him with less was direct sex discrimination.
The ET considered that the purpose of both ML and SPL was to provide care for the child and concluded that Mr Ali could, after the 2 weeks of compulsory ML compare himself to a hypothetical female (transferred to CCM under TUPE as he was) who had given birth and who was taking leave to care for her child. The ET considered that the Equality Act 2010 allows for the special treatment of women in connection with pregnancy or childbirth only in respect of compulsory ML. Any difference in treatment thereafter was discriminatory.
Overturning the ET’s decision, the EAT identified the comparator as a TUPE transferred female employee caring for her child using SPL. CCM provided SPL to men and women on the same terms and therefore failure to provide enhanced pay was not discriminatory. The EAT considered the primary purpose of ML to be ensuring the health and wellbeing of a woman during pregnancy and after childbirth. Caring for a child is a consequence of, but not the purpose of, ML. SPL, by contrast, focuses on the child’s care and provides leave on the same terms for women and men.
The CA, agreeing with the EAT, confirmed that there was nothing in EU or domestic legislation or jurisprudence to support the conclusion that the purpose of both ML and SPL is the provision of childcare. The EU Pregnant Workers Directive requires a minimum period of 14 weeks’ maternity leave for health and safety of pregnant workers and those who have recently given birth. The introduction of SPL in no way contradicted this notwithstanding changes in policy and EU efforts to achieve “balanced participation of men and women in family and working life”. The ECJ decision in Hoffman together with other EU cases, confirmed that the predominant purpose of ML is to protect a woman in connection with the effects of pregnancy, childbirth and motherhood. The proper comparator is therefore a female worker who is on SPL. Since there would be no difference between a man on SPL and a woman on SPL, there could be no discrimination.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.