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Cases highlight parental leave issues; The latest news from HR, recruitment, employment law and staff issues by Ken Symon.

Byline: Ken Symon

THE ISSUE of whether males are entitled to receive shared parental leave pay equivalent to enhanced maternity leave pay offered by an employer was the focus of two recent cases before the Court of Appeal.

The court handed down much anticipated decisions in the case of Capita Customer Management Ltd v Ali which reviewed a decision of the Employment Appeal Tribunal that concluded that failing to enhance shared parental leave, when employers offer enhanced maternity pay, is not direct sex discrimination against men.

That appeal tribunal decision closely followed another one by the same body in the case of Hextall v Chief Constable of Leicestershire Police, which rejected claims of direct sex discrimination in similar circumstances on the basis that the correct comparator to a man claiming shared parental leave could only be a woman claiming such leave, not a woman on maternity leave.

Looking at both cases the Court of Appeal was asked to consider whether the failure to match pay in the case of share parental leave to the level of maternity pay amounted to sex discrimination.

The Court of Appeal held that failing to match pay for shared parental leave to the level of maternity pay is neither direct nor indirect discrimination. Both appeals have therefore been dismissed.

It concluded that men on shared parental leave couldn't compare themselves with women on maternity leave, as their circumstances are materially different. Maternity leave is for the health and safety of the mother following pregnancy and childbirth.

Its purposes include helping women prepare and cope with the later stages of pregnancy; recuperate from the effects of pregnancy and childbirth; breastfeed; and bond with their newborn child.

Shared parental leave is, by contrast, provided to enable parents to look after their child. The proper comparison to be made for a man on shared parental leave was, therefore, a woman on shared parental leave (who in this case was paid the same rate).

Morag Moffett, a partner at Burness Paull, said: "While the decision is good news for employers who offer enhanced maternity leave packages but do not extend the enhancement to male employees on shared parental leave, it will do nothing to help improve the abysmally low uptake by fathers of shared parental leave, and serves to reinforce the view of women as primary carers in the workplace.

"It remains to be seen, however, whether the employees involved will now appeal to the Supreme Court."

Julie Keir, a practice development at Brodies, said: "Although many employers are taking steps to equalise family leave benefits, this decision provides comfort to those who choose to enhance maternity pay but not shared parental pay. Maternity leave and pay can be treated as a special case without risking sex discrimination claims.

"This may not quite be the end of the road, however, as both Mr Ali and Mr Hextall are seeking permission to appeal to the Supreme Court." |

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Publication:Insider Monthly
Date:Jul 2, 2019
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