The EAT have overturned an employment tribunal’s decision that a male suffered direct sex discrimination when his employer enhanced maternity pay but not shared parental pay, writes Sarah Gilzean.

Last year two cases relating to whether a failure by employers to pay enhanced shared parental pay when maternity pay was enhanced was discriminatory were brought before different tribunals. In Hextall v Chief Constable of Leicestershire Policethe tribunal concluded that maternity leave and pay were special treatment afforded to women in connection with pregnancy and childbirth - this special treatment being something that the Equality Act 2010specifically states no account should be taken of when assessing whether a man has been discriminated against.

The tribunal also considered that the correct comparator (the individual, real or hypothetical that the claimant compares himself to, in order to demonstrate the difference in treatment) for such a claim would be a woman taking Shared Parental Leave (“SPL”) and not a woman on maternity leave. A woman taking SPL would have been treated the same way as the male claimant and on that basis the claim was unsuccessful, the tribunal finding that there had been no less favourable treatment.

However, in the second case, Ali v Capita Customer Management Ltd, a tribunal found that the employer’s failure to match their enhanced maternity pay with enhanced shared parental leave was direct discrimination. The facts of the case were a little complicated involving a transfer of an undertaking and the timing of the introduction of Shared Parental Leave (“SPL”), but the crux of the matter was that, at the time Mr Ali’s wife gave birth his employer paid enhanced maternity pay to female employees for the first 14 weeks of their leave, but shared parental pay was paid at the statutory rate.

Mr Ali managed to persuade the tribunal that, because parents could chose which one of them took SPL it was sex discrimination to pay the mother more than a man in respect of that leave. In response Capita had argued that the right to maternity leave and therefore the enhanced pay arose because a woman had given birth and the special considerations that arise from the fact that only a woman can be pregnant or give birth. They also relied upon provisions of the Equality Act 2010that meant special treatment afforded to women in connection with pregnancy and childbirth could not be taken into account when attempting to establish sex discrimination.

The ET held that the claimant could compare himself to a female colleague even though he had not given birth. The ET concluded that after the two weeks of compulsory maternity leave expired then maternity leave could be treated as being to care for the child. That led them to conclude that the enhanced pay provided to the mother following the end of the compulsory period was not “special treatment in connection with pregnancy and childbirth” and therefore could be taken into account when assessing if discrimination had taken place.

Both cases were appealed to the EAT. Hextallwas heard on 16 January 2018 but a judgement is still awaited. However, a judgement has now been handed down in Capita Customer Management Limited v Ali, which was heard in December 2017.

The EAT upheld the employer’s appeal, finding that the tribunal had made a number of errors when concluding that discrimination had occurred. Central to the ET’s conclusion had been a conclusion that, following the completion of compulsory maternity leave, the purpose of the remaining leave was to care for the child. The EAT did not agree. It stated that the domestic and European legislation draws a clear distinction between the rights of pregnant workers, who by reason of biology are women, and the rights given to 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 in which they are given - the purpose of maternity leave being for the health and wellbeing of the pregnant and birth mother, not the care of the child. The purpose of SPL was the care of the child.

The consequence of this was that the ET erred in concluding that the claimant could compare himself to a woman on maternity leave as his circumstances were materially different. The appropriate comparator in this claim would be a woman on shared parental leave (who would have received the same terms as the claimant) and not a woman on maternity leave.

The EAT also found that, even if the appropriate comparator had been a female on maternity leave, that comparator’s treatment should have been disregarded when assessing discrimination because it was special treatment in connection with pregnancy and childbirth. The door was left open though for a similar claim relating to the latter stages of a woman’s maternity leave, the EAT noting that it may be that after 26 weeks of leave the purpose of it may change from biological recovery from childbirth to care of the child.

This judgment is very much in accordance with the reasoning used by the employment tribunal in the Hextallcase. It is likely that the EAT may well reach the same decision in the Hextallappeal, upholding the tribunal’s original judgement. If it does so that will result in two appellate decisions confirming that failing to enhance shared parental pay to match enhanced maternity pay is not discriminatory giving employers some much needed certainty on this issue.