The court held there was ‘nothing unusual’ about the employers’ policies, in Ali v Capita; Hextall v Chief Constable of Leicestershire Police [2019] EWCA Civ 900.
In Ali, women were entitled to maternity pay of up to 39 weeks, with 14 weeks at full pay followed by 25 weeks of lower rate statutory maternity pay. Parents taking shared parental leave received statutory shared parental pay only. Mr Ali claimed direct discrimination, arguing only the first two weeks of compulsory maternity leave are necessary while the rest of maternity leave is a choice about providing care.
In Hextall, women were entitled to 18 weeks full pay followed by 39 weeks of statutory maternity pay whilst those on shared parental leave were only paid at statutory rates. Mr Hextall argued his employer’s policy indirectly discriminated against men.
However, the court unanimously rejected both appellants’ arguments.
Jenny Arrowsmith, partner at Irwin Mitchell, who acted for Capita, said: ‘Parliament has made a statutory exception which gives special treatment to a woman in connection with pregnancy or childbirth.
‘That special treatment is, by definition, not available to anyone other than a birth mother, which means the partners of birth mothers are not discriminated against if they do not receive enhanced benefits for taking leave to care for their newborn. This decision will be welcomed by employers that pay higher rates to women on maternity leave than to parents on different types of family leave.
‘It’s also good news for women. Had the decision gone the other way, employers may have reduced their maternity pay to statutory rates because they could not afford to equalise pay rates to those taking shared parental leave.’
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