On 11 April 2018 the EAT overturned the direct discrimination finding of the Tribunal in Ali v Capita Customer Management Ltd concerning whether employers who offer enhanced maternity pay must also offer enhanced Shared Parental Pay. Rachel Crasnow QC considers the judgment in this blog. Cloisters' Chris Milsom acted for the intervener Working Families in the appeal.
Mr Ali wished to take shared parental leave (SPL) so that his wife could go back to work, and he could care for his new-born child. He was refused a rate of pay equivalent to what a woman would get on maternity leave for the 2-14 week post-birth period. His employers said he was only entitled to pay for SPL. He claimed direct sex discrimination from not being entitled to pay at this higher maternity pay rate for 12 weeks after the 2 weeks compulsory maternity leave.
For the Employment Tribunal to determine this point there needed to be a comparison between two types of leave: maternity leave and shared parental leave.
The Tribunal had accepted the purpose of the SPL Regulations 2015 (to allow parents to share care of new born babies) was relevant to a claim of sex discrimination under the EqA and directed itself that legislation had to be read in the context of parental roles and choices as they are in 2016, noting that either parent could perform the role of caring for their baby in the first year.
The EAT took a different and more constrained stance regarding the apparently singular purpose of the Pregnant Workers Directive 92/85/EEC (PWD). It found it was wrong of the ET to hold that the circumstances of Mr Ali were comparable within the meaning of s23 Equality Act 2010 (EqA) to those of a woman who had recently given birth, as both had leave to care for their child, because that finding failed to have regard to the purpose of maternity leave and pay.
The EAT said the purpose of maternity leave with pay had to be taken into account.
Vitally, the EAT found that purpose of paid maternity leave under the PWD is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. It was not for caring.
Such a distinction, in a nutshell, is why Mr Ali lost the appeal.
Five possible points arise from this approach.
First is the question of timing. If all of maternity leave is for the purpose of recovery from childbirth, why is it lawful to curtail all but 2 weeks of it for the SPL regime? Also the PWD refers to only 14 weeks leave in Article 8, with 2 of those being compulsory. Surely it is doubtful that the purpose of Additional Maternity Leave (26-52 weeks) could be said not to be for caring. However this appeal was only about the period up to 14 weeks.
The EAT’s nod to timing being a relevant factor is clear at  when Mrs Justice Slade makes the obiter comment that a comparison after 26 weeks could be dealt with differently. Cases like Hofmann  ICR 731 and Montull  ICR 1323 simply have not dealt with this timing point.
To argue that all maternity leave falls within the scope of s13(6) EqA appears not to bear in mind the full scope of EU developments in parental and maternity leave since the PWD in 1992.
The second point is about the where the EU is now with maternity and family rights. A new Maternity Leave Directive was proposed in 2008 by the European Commission. The draft included longer periods of paid maternity leave complemented by parental leave to be taken by either parent. The purpose was no longer just health and safety, but better reconciling professional and family life and facilitating female participation in the labour market. Failed efforts to break a deadlock regarding this draft led to its withdrawal by the European Commission in 2015 who later instead suggested as an alternative, an initiative intended to lead to real improvements in the lives of working parents and carers in the form of a draft Work Life Balance Directive.
The CJEU authorities relied upon for the principle that the primary purpose of maternity leave and pay is the health and wellbeing of the mother, in particular Hofmann and Montull, pre-date this 2017 development.
Whether the EAT is right that such a clear distinction exists between different kinds of leave may be open to challenge; note that the findings at  do not accept any overlap:
“ The domestic and European legislation draws a clear distinction between the rights given to pregnant workers and those who have given birth or are breastfeeding, who by reason of biology are women, and the rights given to the parents of either sex to take leave to care for their child. The purposes of the two sets of rights are different, as are the circumstances of those to whom they are given. The different provisions in the Telefonica policies for maternity leave and pay and for shared parental leave and pay reflect those different purposes and circumstances.”
Thirdly, linked to this, is the lack of acceptance by the EAT that it is relevant that the objectives of the Shared Parental Leave Regulations 2015 are in line with the EU developments on maternity and parental leave (against which the EqA must be interpreted).
Fourthly the EAT’s approach was arguably too rigid in that it did not really analyse the logic of its position bearing in mind non-birth parents (adoptive and surrogate parents) now have identical rights to mothers on maternity leave: see  of the judgment.
Lastly Mr Ali had argued that regardless of domestic and EU legislation, the internal policy of Capita was itself discriminatory. The EAT did not really answer his contention that neither form of leave obliged Capita to treat Mr Ali less favourably than a woman, instead stating that the internal policy complied with the statutory provisions and reflected their purpose and effect.
The EAT also considered the issue of the s.13(6)(b) EqA derogation which states that no account is to be taken of special treatment afforded to a woman in connection with pregnancy and childbirth. Given the current EU and UK emphasis on retaining women’s jobs post childbirth, does paying enhanced pay for maternity leave but not enhanced pay for SPL still achieve the legitimate aim of compensating women for disadvantages occasioned by her pregnancy or her maternity leave? See Eversheds Legal Services Ltd v De Belin  IRLR 448.
The EAT also dealt with a victimisation complaint but this was on a separate issue and is not discussed further in this blog.
It may be that if the case had been brought as one of indirect discrimination, for example, based on a PCP of receiving statutory pay on SPL (more men than women take this up because women can access maternity leave, despite women being technically able to access this SPL rate) it would have had greater prospects of success.
We will have to wait for the EAT judgment in the appeal in Hextall v Leicestershire Police for that analysis.
RACHEL CRASNOW QC