Employment Law: Equality in the Workplace - Shared Parental and Maternity Leave benefits
11th November, 2019
A recent Court of Appeal reported that there was no direct or indirect discrimination where payments made to male employees (under a shared parental leave policy) were less than the enhanced levels of pay (over and above statutory entitlements) available to female colleagues under the same organisation’s maternity leave policy.
This appeal involved two separate claims from employees who worked for two different employers. Both company policies stated that statutory rates would be paid under their Shared Parental Leave (SPL) policies whereas female staff on maternity leave would receive several weeks' enhanced pay before their entitlements dropped to statutory levels. Both claimants brought claims on the basis that this disparity was both directly and indirectly discriminatory on the grounds of sex.
The Court of Appeal considered that maternity leave and SPL entitlements are not comparable for the purposes of discrimination legislation. Maternity leave relates to matters exclusive to the birth mother as opposed to broader childcare issues. The necessary "comparator", in relation to whom the claimant would need to show less favourable treatment for the purposes of a direct discrimination claim, would therefore be a female colleague on SPL as opposed to maternity leave and less favourable treatment would therefore not be established.
The Court of Appeal further considered that a claim for indirect discrimination was unfounded as the differential in benefits provided under the two schemes would be justified as a proportionate means of achieving a legitimate aim.
The outcome of this appeal indicates that Employers can offer different levels of pay or benefits within their maternity and shared parental leave schemes.
Please note that both claimants have applied for permission to appeal to the Supreme Court. Watch this space!
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