This update follows our update in July last year regarding Mr Ali’s claim of sex discrimination because he was not paid enhanced pay whilst on Shared Parental Leave like those on maternity leave. Capita, the respondent and employer in this case, took this to the Employment Appeal Tribunal (the EAT). The EAT has upheld their appeal.
It stated that the decision of the original Tribunal was based on an incorrect finding that the purpose of maternity leave and pay is to provide for the care of a child. There is, however, a distinct difference between the rights given to pregnant workers and those who have given birth (i.e. women) compared to the rights given to parents generally to take leave to care for their child.
As highlighted in our previous update, the primary purpose of the European directive which introduced leave for pregnant women was the health and well being of the mother. Maternity leave is therefore aimed at protecting the well being of the mother, whereas Shared Parental Leave is aimed at those caring for the child.
The EAT therefore held that the correct comparator was not a woman on maternity leave but a woman on Shared Parental Leave. Even then, the comparator’s more favourable treatment should be disregarded as special treatment afforded to a woman in connection with pregnancy or childbirth.
It was also raised at the EAT that it may be that after 26 weeks the purpose of maternity leave may change from the biological recovery from childbirth and special bonding to more general care of the child. If this is the case, then it may be possible to compare a father on shared parental leave and a mother on maternity leave. It remains to be seen whether a case on those such facts would succeed.
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