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It Is Not Discriminatory to Pay Women More Says Court of Appeal

Posted On: [06/09/2021]

It is not discriminatory to pay women more says Court of Appeal


Ali v Capita and Hextall v Chief Constable of Leicestershire Police (joined cases)

The Court of Appeal heard these two cases together and ultimately decided that it is not discriminatory to enhance maternity pay, while only offering statutory shared parental pay for partners. This applies whether the claim is for direct or indirect discrimination, or equal pay.

Leicester Police and Capita have similar policies on maternity pay and shared parental leave. Capita pays women maternity pay of up to 39 weeks, with the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking shared parental leave receive statutory shared parental pay only. At Leicester Police, women are entitled to 18 weeks’ full pay followed by 39 weeks of statutory maternity pay. Shared parental leave is paid at statutory rates.

Direct sex discrimination

Mr Ali’s said that Capita had directly discriminated against him by paying him less than a woman. He said that only the first two weeks of compulsory maternity leave are necessary to protect a mother following childbirth. Remaining on maternity leave after that, rather than switching to shared parental leave, is a “choice” about providing childcare. Mr Ali said that there shouldn’t be a financial incentive for the birth mother to stay at home and that the mother and partner should both have same benefits when taking leave to care for the child.

The Court disagreed with him, saying that his arguments amounted to an “attack against the whole statutory scheme” under which special treatment is given to women on maternity leave and that the “entire period of maternity leave, following childbirth, is for more than facilitating childcare”. It helps women prepare and cope with the later stages of pregnancy, recuperate from giving birth, bond with their child, breastfeed and care for the new arrival. Shared parental leave on the other hand, is mainly about childcare.

The exception to a comparison between employees for “special treatment afforded to a woman in connection with pregnancy or childbirth” is wide enough to include enhanced maternity pay. The minimum of 14 weeks’ leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks.

The Court concluded that men on parental leave and women on maternity leave are not in comparable positions for the purposes of Equality Act 2010. There was no direct sex discrimination.

Indirect sex discrimination/Equal Pay

Mr Hextall’s argument was that Leicester Police’s policy of paying women on maternity leave more than those on shared parental leave indirectly discriminated against men. Leicestershire Police said that his argument was actually about equal pay and not indirect discrimination. The Equality Act 2010 incorporates a sex equality clause in all contracts of employment where an individual does work that is equal to the work done by a comparator of the opposite sex. Mr Hextall said that the sex equality clause should modify his terms of work by including a corresponding term giving him leave and pay at the same rates as a female police officer taking maternity leave.

The Court agreed with Leicester Police that a contractual difference in shared parental leave pay between men and enhanced maternity pay for women is about equal pay and not  indirect discrimination. In any event, Mr Hextall could not have been successful with that type of claim because the law allows employers to make exceptions for women who are pregnant, have recently given birth or who are breastfeeding. For the same reasons as direct discrimination, that exception is wide enough to include enhanced maternity pay.

There is a specific exclusion in Schedule 7, Paragraph 2 Equality Act 2010 for indirect discrimination claims where they would be equal pay claims except for a specific exception. A claim can only be about equal pay or direct/indirect discrimination. It cannot be both.  For this reason, Mr Hextall could not pursue an indirect discrimination claim. Even if he could, the Court said that his indirect discrimination claim was invalid for the same reasons as Mr Ali’s. Shared parental leave cannot be compared with maternity leave.
In short, Parliament has made a statutory exception which gives special treatment to a woman during pregnancy and childbirth. That special treatment is only available to the birth mother.