The HR Forum

So this is a topic that often comes up in DER and when discussing family friendly policies.

The EAT's most recent decision is below, courtesy of Practical Employment Law (PLC):

Capita Customer Management Ltd v Ali and another UKEAT/0161/17.

The EAT has overturned an employment tribunal's decision and has held that failure to pay a male employee enhanced shared parental pay, in circumstances where it did pay enhanced pay to women on maternity leave, was not direct sex discrimination.

The EAT held that the purpose of shared parental leave is different to maternity leave. The primary purpose of the Pregnant Workers Directive is the health and wellbeing of the pregnant and birth mother, and it requires member states to provide a minimum of 14 weeks' maternity leave paid at least at the same level as statutory sick pay. In contrast, the Parental Leave Directive focuses on the care of the child and makes no provision for pay. A father taking shared parental leave was therefore not in a comparable situation to a mother taking maternity leave.

The correct comparator would be a woman on shared parental leave, who would have been given shared parental leave and pay on the same terms as the claimant. In any event, the tribunal should have found that the more favourable treatment given to women on maternity leave was rendered lawful by section 13(6)(b) of the Equality Act 2010.

This decision supports the employment tribunal decision of Hextall v Chief Constable of Leicestershire Police which was also appealed to the EAT. Hextall was heard on 16 January 2018 and the decision is awaited.

All the best



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