Is it discriminatory to pay men more than the statutory minimum parental leave pay when women were paid more than the minimum for maternity leave?

This was the question for the Court of Appeal in the case of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall. The court considered the case on 2 broad grounds, Discrimination and Equal pay and held that in either case it was not discriminatory.

The Court decided as follows:

Equal Pay

A contractual difference in shared parental leave pay between men and enhanced maternity pay for women is properly characterized as an equal pay claim. The clause in a contract providing women with a higher level of pay is more favourable to women than men.

Whilst there is a general prohibition against discriminatory actions the Equality Act 2010 does take a commonsense approach and acknowledges that in some circumstances there are legitimate exceptions. Paragraph 2 of Schedule 7 to the act says:

"A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth."

For the same reasons as direct discrimination (below), that is wide enough to include enhanced maternity pay. As a result, there is no claim for equal pay as it is specifically excluded by Equality Act 2010.

Direct Discrimination

The court also considered the exception at Paragraph 2 of Schedule 7 to the Act when considering whether men and women are in comparable positions and therefore where men are treated less favourably, is this discrimination in breach of the Act?

The court held that this exception 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 and:

"The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner."

Perhaps logically the court held that men on parental leave and women on maternity leave are therefore not in comparable positions for the purposes of Equality Act 2010.

Indirect discrimination

There is a specific exclusion for indirect discrimination claims where there would be equal pay claims except for a specific exception. The exception for equal pay in paragraph 7 of schedule 2 therefore means that indirect discrimination claims cannot be brought either.


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