By Jodie Hill

The judgment from the much anticipated case of Ali v Capita Customer Management Ltd and Leicestershire Police v Hextall was handed down from the Court of Appeal earlier this month. Thrive Law’s Jodie Hill represented Mr Ali at his first hearing. The ruling was, essentially, that it is not discriminatory to refuse a father enhanced pay while on shared parental leave, even where mothers would be in receipt of enhanced maternity pay by the same employer. The main reasoning for this is that mothers are afforded special recognition and legal protections for their biological recovery from childbirth.

Summary facts of the case:

The Court of Appeal issued its judgement on the 24th May 2019, dismissing the appeals in both Ali v Capita Customer Management Ltd and The Chief Constable of Leicestershire Police v Anthony Hextall.

Both of the respondents in this case, Capital Customer Management Ltd and Leicestershire Police offered generous enhanced maternity pay to women, whilst offering only the statutory rate of shared parental pay (SPP). The claimants separately argued that failure to pay them the equivalent of enhanced maternity pay amounted to direct discrimination (one claimant also alleged indirect discrimination) contrary to the s.13 of the Equality Act 2010.
The argument that maternity leave is identical to shared parental leave was rejected by the Court. It was found that, in fact, maternity leave is to protect a woman in connection with the effects of pregnancy and motherhood.

It was also that the claimants (in this case, fathers) could not be compared to women on maternity leave. Under the Equality Act, the purpose of maternity leave is to assist new mothers in their physical and psychological recovery from pregnancy and childbirth. A female employee on shared parental leave would be the correct comparator, and in that situation there was no difference in pay.

Analysis of the outcome

This outcome is controversial and was, admittedly, not the outcome that many commentators expected.

One school of thought is that, practically, in order for women and men to be equal in the workplace, their maternity and paternity rights should also be equal. From a female perspective, only once they will no longer be seen as “the one who could leave to look after children” there is always the grounds for potential sex discrimination as the assumed caregiver. Therefore, should employers be encouraging all parents to be equally involved in parenting?

However, the case recognised that the entire period of maternity leave (rather than just the compulsory 2 weeks immediately following childbirth) is predominantly for the protection of the mother to deal with the drastic change in circumstances following childbirth and not for the care of the child. Therefore, maternity leave and shared parental leave are not comparable as they have completely different aims, and mothers on maternity leave are in a different comparative pool from those on shared parental leave.
What does this mean for you as an employer?

Both of the unsuccessful claimants have sought permission to appeal the Supreme Court of the UK so this matter may well not be over. For now, employers can continue to provide enhanced maternity leave, without needing to provide any reciprocal enhanced shared parental leave.