The law has always distinguished a woman who has given birth to a child from any other form of parent as a ‘special’ case because only women have been able to give birth. That has enabled employers to treat mothers taking maternity leave more favourably than a father taking paternity leave. If you pay a mother an enhanced payment but not the father potentially the man can argue that he is being treated less favourably because he is a man. However, it is lawful to do this and won’t be direct sex discrimination if the employer can show that its ‘special treatment’ afforded to a woman in connection with a pregnancy and childbirth is in accordance with Section 13(6)(b) of the Equality Act 2010.

However, in the case of Eversheds Legal Services Limited v De Belin in 2011, the Appeal Tribunal ruling means the employer does need to be able to objectively justify the treatment between the parents just as they might in an indirect discrimination claim. So what might be such a ‘proportionate means of achieving a legitimate aim’?

In the case of Shuter v Ford 2014, a case dealing with indirect discrimination, Ford successfully argued that they paid enhanced pay to women mindful of the need to recruit and retain women in a male dominated working environment. Obviously those sorts of aims are only available to those employers who have a gender imbalance in the workplace.

There is an EC decision which suggests it may be a legitimate aim to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, or to protect the biological condition that will encourage improvements in the safety and health of mothers who are pregnant who have recently given birth or are breast-feeding, at least until such time as their psychological and mental functions have returned to normal after childbirth.

Even if an employer can show that their aim falls into that kind of category, they are still going to have to show that the particular pay policy they put in place is a proportionate means of achieving that aim. Those sorts of aims might cut it for a short period after the birth, but probably wouldn’t justify a lengthy period of enhancement. If an employer wants to look more broadly, they may have to show that they are trying to, for example, address a low number of women in senior positions or address a higher attrition rate for women or be compensating for disadvantages that have been found in the workplace when it comes to things like promotion and salary increases. Whatever the aim, an employer is going to need to have articulated it and written it down rather than try and come up with something at the point the men start complaining.

Increasingly, the law is moving away from the current position so forward thinking employers may want to grapple with this ahead of the curve. For example, the Children & Families Act is extending maternity leave and pay to women who have not been pregnant or given birth so that those who choose surrogacy are able to take time off with their child. The introduction of shared parental leave is taking the focus away from one particular parent undertaking the childcare. There is an argument that in legislating in these respects, Parliament is ‘detaching’ maternity leave from the biological condition of pregnancy and childbirth so it will become harder, in the future, to argue that there is no material difference between parents. There was a Spanish case that went to the European Court which certainly lends support to an argument that by a certain point after childbirth, perhaps after 26 weeks when the majority of women have ceased breastfeeding, that there is no material difference between the parents. Things may, therefore, shift again in the future and force employers to be more gender balanced in their pay policies.