The decision in the cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall concern the rights of fathers to receive enhanced payments when absent on shared parental leave matching female employees’ enhanced maternity packages. Failure to provide such enhanced packages, they argued, amounted to discrimination on the grounds of their gender.
Maternity leave and payment
Employed mothers are entitled to 26 weeks’ ordinary maternity leave and a further 26 weeks' additional maternity leave. In addition, employees are entitled to 39 weeks’ statutory maternity pay (subject to them meeting certain criterion). Many employers, however, offer a maternity package that is more generous than the 39 weeks’ statutory maternity pay (SMP).
Shared parental leave and payment
Parents may decide to share this period of 52 weeks’ leave and receive payment (the same rate as SMP) for 37 weeks of that period (the remaining two weeks of leave and payment is the period of compulsory maternity leave that all mothers are required to take immediately after childbirth). The majority of employers do not offer any enhanced payment for shared parental leave, and so payment is limited to the level of SMP.
Case details
In Ali v Capita Customer Management Ltd, Mr Ali was entitled to two weeks’ paternity leave at full pay and then up to 26 weeks’ additional paternity leave on statutory shared parental leave pay. His female colleagues, however, were entitled to enhanced contractual maternity pay consisting of 14 weeks’ full pay and then 25 weeks’ SMP. This, he argued, was direct discrimination because he had been treated less favourably purely because of his gender.
In Chief Constable of Leicestershire Police v Hextall, Mr Hextall took 14 weeks’ shared parental leave and was paid shared parental leave pay for the duration. His female colleagues, however, were paid full pay for 18 weeks under his employer’s maternity policy. He similarly felt that he had been treated less favourably on account of his gender, as if he had been a woman, he would have been entitled to a more beneficial payment package for his period of leave.
The decision
The Court of Appeal took the various claims made by Messrs Ali and Hextall and decided that neither men had been discriminated against, either directly or indirectly and there was no equal pay claim to be made. The Court of Appeal found that special treatment and protection is afforded to women on maternity leave, as in its view the purpose of maternity leave is far wider than the facilitation of childcare, which it concluded was the main purpose of shared parental leave. The Court of Appeal held that this then precludes any comparison between men on shared parental leave and mothers on maternity, and without comparison, no discrimination can be proven. Additionally, the sex equality clause, as implied in employment contracts by the Equality Act 2020, does not apply when different terms afford special treatment to women in connection with pregnancy or childbirth. Hence no equal pay claim either.
Comment
This will come as welcome news to employers as there are no expensive changes to be made to shared parental leave provisions. However, for gender equality in the workplace, the news may not be so good. The take up of shared parental leave by fathers is still comparatively low. This may, in part, be because of the detrimental effect on family incomes of substituting an enhanced maternity package for statutory parental leave pay. The European Parliament is looking at work-life balance for carers, with a view to increase the take-up on family related leave and flexible work arrangements. It is unlikely that changes will be made before October and so any recommendations, whilst they may be valuable, will have no legal effect in a Brexited Britain. Many employers, however, will be looking at the bigger picture of creating equality in the workplace, and may decide to offer enhanced pay for both parents who wish to take time off during the first 52 weeks after the birth of their child.
For more information on this briefing, or if you require any assistance with your workforce arrangements, please contact Hazel Findlay.
We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
The parliamentary processes are complete and the Restriction of Public Exit Payments Regulations 2020 (“the Regulations”) which cap exit payments in the public sector at £95,000 will be in force from 4 November.
As the UK’s social housing sector recovers from the initial Covid-19 outbreak and lockdown, now is the time to focus on the challenges that may emerge next.
There is no universal approach to regenerating town centres. However, housing must be considered a key part of any regeneration project – providing well-needed new homes and economic growth.
Friday 16 October marks the 6th annual Wear Red Day in England, Wales and Scotland. Wear Red Day is the brainchild of the charity; Show Racism the Red Card (SRTRC). SRTRC aims to educate young people so they are equipped to recognise and challenge stereotypes, misconceptions and negative attitudes towards race.
Alongside the Building Safety Bill published in July 2020, the Fire Safety Bill is a key step in the Government’s strategy to improve building and fire safety in the wake of the Grenfell Tower tragedy
Government regulations came into force on 23 September 2020 providing LGPS (local government pension scheme) employers with flexibility on meeting exit payments and LGPS funds with flexibility too
Charity Financials, the financial information program from Wilmington Charities, has published its latest Income Monitor report.
As employers face the end of the Coronavirus Job Retention Scheme on 31 October 2020, Katherine Sinclair and Libby Hubbard discuss the intricacies of the redundancy process for furloughed employees.
We have learned many things over the last six months; the latest lesson is that there is no new normal. The Government initiatives and guidance may have slowed down a pace, but the challenges for employers and their employees remain.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.