The cases of Ali v Capita Customer Management and Chief Constable of Leicestershire v Hextall have a fairly lengthy history. The question looked at in both cases was whether it was discriminatory to pay a man on shared parental leave less than a woman on maternity leave.
Before the employment tribunal Mr Ali successfully claimed it was direct sex discrimination for his employer to pay 14 weeks of enhanced maternity pay to female employees but to pay shared parental leave at the statutory rate. However, the EAT overturned that finding on the basis that maternity leave was provided for the health and safety of the mother following pregnancy and childbirth while the purpose of shared parental leave was the care of the child. There was therefore no valid comparison between Mr Ali and a female on maternity leave - the correct comparator would be a female on shared parental leave who would have been treated the same way.
Mr Hextall meanwhile claimed that his employer's policy of paying enhanced maternity pay but statutory shared parental pay was both directly and indirectly sex discrimination. The employment tribunal dismissed the direct discrimination concluding that maternity leave and pay were special treatment afforded to women in connection with pregnancy and childbirth - this being something that the Equality Act 2010 specifically states no account should be taken of when assessing whether a man has been discriminated against. The tribunal also considered that the correct comparator for both the direct and indirect claims was a female taking shared parental leave who would have been treated no differently from Mr Hextall and both claims were dismissed.
There was no appeal against the dismissal of the direct discrimination claim but the EAT did consider an appeal against the indirect claim. The appeal against the dismissal of the indirect claim was successful. This was on the basis that the ET had made an error in the way in which it identified the correct comparator in the indirect claim and in concluding that the PCP did not put men at a disadvantage. The EAT ordered the case to be reheard by a different tribunal. Both the employment tribunal and the EAT also held that the claim was not an equal terms claim.
The Court of Appeal then heard appeals against the EAT judgements in both cases. The Court of Appeal agreed with the EAT that the appropriate comparator in Mr Ali's direct claim was a woman on shared parental leave so his appeal was dismissed. The Court found that both the tribunal and the EAT had erred in holding that the claim was not an equal terms claim. Mr Hextall's claim therefore was that the equality clause would work to upgrade his terms of work to entitle him to take leave to care for his baby at the same rate as a mother on maternity leave. However, the Equality Act Schedule 7 para 2 states that "a sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth" so that claim also failed.
The Equality Act 2010 also contains a mutual exclusivity provision which prevents a claim for indirect discrimination being brought where the claim is an equal terms claim, even if (as here) the equal term claim fails because of the application of the statutory exception in Schedule 7 para 2. For that reason the indirect claim could not succeed. The Court went on to comment that the indirect discrimination claim would have failed anyway because a woman on maternity leave was not a valid comparator for a man on shared parental leave.
For the time being it seems employers can enhance maternity pay without also enhancing shared parental pay. However, both parties are seeking permission to appeal to the Supreme Court so this may not be the last word on this matter.
