Enhancing shared parental pay differently to maternity pay is not sex discrimination, a recent case has resolved.  The Court of Appeal recently heard from two male claimants who felt they suffered discrimination when their employers failed to pay them an enhanced parental payment equivalent to the maternity pay that a woman on maternity leave for the same period in their organisations would have received.

The Court of Appeal rejected the proposition that the purpose of maternity leave and shared parental leave is the same, ie. care for the child.  Rather, maternity leave is there to protect a woman in connection with the effects of pregnancy and motherhood so cannot be compared to other forms of leave.

Indirect discrimination complaints also failed around the technicalities to do with the interaction between the equal pay legislation and sex discrimination legislation. There is a specific exemption in the Equality Act 2010 that precludes an equal pay claim in relation to terms that affords special treatment to women in relation to pregnancy or childbirth. Thus there could be no successful claim.

From a legal perspective this case has resolved a question we were all asking in relation to the shared parental leave legislation.  It is helpful to those organisations who have significantly enhanced maternity pay policies, where they might have been uncomfortable about the cost of automatically extending the same level of pay to a wider group of staff who may be taking parental related leave.  In this particular case, one employer paid 14 weeks full and in the other, 18 weeks full pay.

However, we know we have a problem with encouraging fathers to take extended periods of leave.  It is only going to be when they can afford to do so, that it is going to be the “norm” rather than the exception.  Thus, employers should still be thinking about what they can do to support fathers and the same sex partners of those women who are taking maternity leave. It is only when we change this as a society that real change is going to happen and greater equality between the sexes is achieved, so employers may still want to look at this – just because legally you can get away with something doesn’t mean it is right.