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Is offering enhanced maternity leave but not offering enhanced shared parental leave discriminatory?

No said some recent court decisions – read on for further details.

The Background

Shared parental leave is an incentive introduced by the Shared Parental Leave Regulations 2014 to encourage parents to share the leave after baby is born for the purposes of caring for their child.  It replaces the former benefit available to partners of additional paternity leave.  Essentially, mothers choose to end their maternity leave, and at this point the rest of what would be maternity leave is converted to shared parental leave available for both parents to share.  Whilst shared parental leave sounds like the perfect solution the uptake by new parents is extremely low.  We can speculate at the reasons for this, however many feel that the primary reason is that companies often have enhanced rates of maternity and paternity pay, with many businesses simply opting for the statutory rate for shared parental pay.  Some believe the reason for the lower rate is because shared parental leave is notoriously difficult to organise (unless both parents work for the same employer), and it takes employees away from the workplace for long periods of time.  In order to organise the share of leave, both parents’ employers must correspond to confirm when each partner leave starts and finishes from the perspective of administering the correct rate of pay.  While the scheme only allows for parents to take the leave in a maximum of three blocks there is still a lot of admin, and small companies simply do not have the resources.

Discrimination?

It has been topical for a while now as to whether only offering enhanced rates for maternity and not shared parental leave could amount to direct or indirect discrimination, or indeed an equal pay claim.  Two cases of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall stipulated that none of these claims are relevant and by offering enhanced maternity pay you are not discriminating against partners who only have access to shared parental leave.

There were two main justifications for this reasoning in both cases:

  1. A mother on maternity leave is not directly comparable with a partner on shared parental leave. A partner on shared parental leave is directly comparable with a mother on shared parental leave who would be on the same rate of pay, therefore direct discrimination does not apply.
  2. The further reason a partner on shared parental leave cannot compare themselves directly with a mother on maternity leave is that under the Equality Act 2010 maternity leave relates to special protection of the birth mother and includes recuperation and protection of the mother’s biological condition.

This special protection is also relevant for any equal pay claim (which is mutually exclusive of a sex discrimination claim).  Any argument that there is a lack of equality clause giving same rights of leave and pay to care for a new born baby between sexes ultimately fails because enhanced maternity ultimately favours women fails as the Equality Act in this protection justifies contractual discrimination if it applies to special treatment in connection with pregnancy and childbirth.

Further issues ahead

The court of appeal in Chief Constable of Leicestershire Police v Hextall did not really engage with the argument that a partner taking shared parental leave cannot elect to take maternity leave, whereas a mother on shared parental leave is making a conscious decision to swap from maternity leave to shared parental leave, thus taking what is often a drop in income.  This is often the crux of why the uptake of shared parental leave is so low, as households cannot afford to turn down enhanced maternity pay available on maternity leave to instead go for shared parental leave.  It will be interesting to see if this argument is run again in the courts, and whether there may be a sliding scale of discrimination whereby special protection for enhanced rates is of course justified in the first instances of maternity leave (where the mother is prioritised to recover from birth), but whether in the latter stages, where some Companies may still offer enhanced rates of maternity pay, partners should get a look in without being subject to a lesser income for what may be a much more comparable position.

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