The Answer is No: Court of Appeal rules that it is not discriminatory for companies to pay men and women differently through their maternity and paternity leaves

July 4, 2019


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2 min read

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What's going on here?

The Court of Appeal dismissed two sex-discrimination cases, ruling that it is not unlawful for men to be paid less on shared paternity leave (SPL) than women on maternity leave (ML).

What does this mean?

The Court of Appeal dismissed the cases of Ali v Capita Customer Management and The Chief Constable of Leicestershire Policy v Anthony Hextall on the grounds that you cannot compare men on SPL to women on ML. This is because new mothers are required to use their time off, in part, to recover from pregnancy and child birth.

The Court of Appeal identified that for the claim in Ali to succeed he must have been treated less favourably than a female employee and the comparison is valid only if there is no material difference between him and the female employee. Similarly, the case of Hextall was dismissed on the reasoning that women are afforded special treatment and legal protections to recover after birth.

What's the big picture effect?

The Court of Appeal emphasised that “maternity leave is not there for the care of the child, but the health and protection of the mother to deal with the trauma of having a child. It is for this reason that maternity leave can start before the baby is born and why women are able to take maternity leave in the sad circumstances of them losing the child.” However, some commentators have questioned the view that ML is about protecting the mother, especially when women can take up to 52 weeks maternity leave. This is because people believe that a 52-week period is substantially for the facilitation of childcare. Nonetheless the Court did not agree.

While some might not be too pleased with the Court of Appeal’s decision, employers will be relieved as the judgment makes clear that it is lawful to enhance your company’s maternity pay policy while paying statutory pay for SPL. If the decision was ruled the other way, then employers could have decided to shift away from the enhanced maternity pay packages, scaling back towards the statutory minimum. Such a consequence would be contrary to the intention of introducing SPL.

Nonetheless this decision has not discouraged all companies from offering SPL to new fathers, with British beverage company Diageo announcing that it will offer 26 weeks paid leave to new dads in the Republic of Ireland. This serves to allow employees to focus on the joy of raising a young family while remaining at work.

An appeal has been lodged to the Supreme Court, so this may not be the final word.

Report written by Maab S

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