Shared Parental Leave: Is Failure to Enhance Discriminatory?

In a keenly anticipated ruling, the Employment Appeal Tribunal (EAT) has reversed a finding from last year that failing to enhance shared parental leave (SPL) pay in line with maternity pay is discriminatory against men. The decision is good news for employers who offer enhanced maternity pay but would struggle to commit to a comparable level of pay for parents taking SPL. However, it does not entirely clear up uncertainty about this tricky area of the law.

In Capita v Ali [2018] UKEAT/0161/17/BA, Mr Ali claimed direct sex discrimination because, when he wished to take SPL, Capita did not offer him the higher rate of pay that it gave women on maternity leave. The employment tribunal agreed that this was discriminatory but the EAT said it had been wrong to compare Mr Ali’s circumstances to those of a woman who has recently given birth. The purpose of maternity leave is not to enable childcare but to protect the new mother’s health and wellbeing. Employers do not, therefore, have to enhance SPL pay because they offer enhanced maternity provision.

5 Tips to Take Away

  1. If you offer enhanced maternity pay, you don’t have to match SPL pay to this. You can continue to pay the statutory amount of £145.18 a week or 90% of the employee’s average weekly earnings, whichever is lower.
  2. Despite this decision, you may wish to offer enhanced SPL as a perk to attract and retain talented staff. Look at what your competitors are doing and assess whether you need to keep up with them or if this would be a good way to set your business apart.
  3. Look at your gender pay gap – if this is significant, offering enhanced SPL could help you to close it by encouraging men to share childcare responsibilities more equally with women.
  4. Watch out for the EAT’s decision in Hextall v Chief Constable of Leicestershire Police: this case, also on the issue of enhanced SPL, was heard in January but we’re still waiting for the verdict. It’s possible the EAT could reach a different conclusion, leaving us with conflicting decisions on this point.
  5. The government is due to review SPL later this year, so again, keep an eye out for developments. SPL has been criticised as too complicated and too badly paid, so some changes may be in the offing. For example, the Women and Equalities Committee, a cross-party group of MPs, recently recommended replacing SPL (which is available to both sexes) with 12 weeks of dedicated father’s leave.