Shared Parental Leave – important appeal decision

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 one, the 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 2010 specifically states no account should be taken of when assessing whether a man has been discriminated against.

However, in the second case, a tribunal found that the employer’s failure to match their enhanced maternity pay with enhanced shared parental leave was direct discrimination.

Both cases were appealed to the Employment Appeal Tribunal (EAT).  Only one judgment has been released but it is important:

The EAT found that the tribunal had made a number of errors when concluding that discrimination had occurred.  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 EAT 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.

It is likely that the EAT may well reach the same decision in the second appeal, upholding the tribunal’s original judgement. If it does so that will result in two 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.

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