Is it sex discrimination if paternal leave pay is not in line with maternity?

If an employer does not enhance shared parental leave pay in line with enhanced maternity pay, would this carry a risk of a direct sex discrimination claim?

Shared parental leave

An employee may be eligible for shared parental leave and statutory shared parental pay if they are having a baby or adopting a child.

If they are eligible for shared parental leave, they can use it to take leave in blocks separated by periods of work, instead of taking it all in one go.

To start shared parental leave or statutory shared parental pay, the mother must end her maternity leave (for shared parental leave) or her maternity allowance or maternity pay (for statutory shared parental pay). If the mother does not get maternity leave (but she ends her maternity allowance or pay early) her partner might still get shared parental leave.

Should maternity and paternity leave and pay be the same?

The purpose of shared parental leave is different from that of maternity leave / pay. Parental leave pay does not have to be enhanced in line with maternity pay.

A recent case in the Employment Appeal Tribunal looked at this. The case was Capita v Ali.

The Employment Appeal Tribunal ruled that the Tribunal had made an error in their conclusion, which was that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare.

The Employment Appeal Tribunal said that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave.

The Employment Appeal Tribunal held that the father's situation was not comparable to a woman on maternity leave.

The purpose of shared parental leave is different from maternity leave

Kate Fretten, a Partner in our Employment Team, says "The purpose of shared parental leave is different from that of maternity leave / pay. The Employment Appeal Tribunal noted that shared parental leave is given on the same terms for both men and women. There is therefore no direct discrimination when a higher level of maternity pay is given than would be given to either sex on shared parental leave."

In this above case, the Employment Appeal Tribunal held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act, as special treatment afforded to a woman in connection with pregnancy or childbirth.


At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.