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Employment appeal tribunal rules that it is not unlawful to pay men less than women during shared parental leave

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Discrimination and paternity leave

Expectant and working families will have noted with interest the decision reached by the employment appeal tribunal in the case of Capita v Ali. This case resolved the disparity between different conclusions reached by two employment judges on the same issue: namely whether paying a male employee taking a period of shared parental leave (SPL) at a lower rate of pay when compared to a woman taking a period of maternity leave is an act of unlawful discrimination.

The first claim on this basis against the Chief Constable of Leicestershire Police had failed when it was considered by a judge at employment tribunal, however a claim on the same facts against Capita Customer Management had succeeded, with the judge in that case ruling that the apparent disparity in pay was contrary to the Equality Act 2010. 

The employment appeal tribunal has concluded that due to the special measures afforded to women both in pregnancy and following childbirth, the disparity in pay was not unlawful. One of the key grounds for reaching this conclusion is that the purpose of maternity leave is not to provide childcare (as is the case in shared parental leave), rather it is primarily for the health and wellbeing of the mother. Other differences between the protection afforded to women in the form of maternity leave and pay, as opposed to SPL, were also drawn upon by the tribunal in reaching this conclusion.

This decision resolved a question that had been raised by the introduction of the little-used shared parental leave scheme. However the emphasis in the judgment on the ultimate purpose of maternity leave and pay – the wellbeing of the mother rather than the care of their child – however laudable, may come as a surprise to mothers living the reality of maternity leave in the first few months after the birth of their child. While the legislation and case law may lead to this conclusion, the argument that childcare is a mere by-product of maternity leave, rather than the reason that the majority of women use this benefit, does not seem particularly in keeping with the common understanding of maternity leave.

It is also arguable that this ruling further undermines any claim that the shared parental leave scheme will be effective in encouraging fathers to take greater responsibility for care of their children immediately following their birth. It is likely to be difficult for many families to welcome the prospect of a significantly decreased rate of pay should they choose the father to care for their new born baby under the current SPL rather than take advantage of the more beneficial maternity pay/leave scheme. Decisions such as those reached above further confirm why the shared parental leave scheme, while well intentioned, lacks the necessary elements to effect any real change in redistributing the burden of childcare. 

The recent announcement by O2 that it intends to significantly increase its paid paternal leave from the statutory minimum two weeks to 14 weeks suggests that the private sector is, in some cases, leading the way with family friendly policies that make financial sense for fathers keen to engage with their children in the earliest weeks of their life. Employees at O2 will now not have to choose between taking a pay cut to support their partner and looking after their child. This policy will no doubt have a substantial positive impact, not only on the personal lives of the fathers in question but also with the recruitment and retention of staff, showing that if an employer gets it right, the impact can be felt in all aspects of the business.