In our last monthly update we commented on the case of Ali v Capita Customer Management Ltd. This case concluded that it was not discriminatory to pay a woman on maternity leave an enhanced rate of pay, compared to a man taking shared parental leave.
However, a more recent decision has been made by the Employment Appeal Tribunal (EAT) in the case of Hextall v Chief Constable of Leicestershire Police.
The EAT considered that enhancing maternity pay but not shared parental leave pay is potentially indirectly discriminatory towards men.
The Hextall case has been remitted to be reheard by a new tribunal. If the new tribunal agrees with the findings of the EAT then it would open a potential claim against the employer for indirect discrimination. It would then be open to the employer to show that the discriminatory treatment is objectively justified.
During this period of uncertainty, employers that pay different rates for maternity leave and SPL should record their justification for doing so.
Based on the EAT’s conclusion in Capita, justification should be easier if the period of enhanced maternity pay is shorter. This is because in the period following birth, a mother is likely to be recovering, and may be breastfeeding, therefore the employer can assert that it does not want her to compromise her health and feel rushed to return to work for financial reasons.