Can you pay dads less than mums to look after their baby?

For the first time, a UK employment tribunal has answered ‘no’ to this question, deciding that it was not permissible for an employer to pay a father on shared parental leave (SPL) less than they would pay a mother on maternity leave. 

29 June 2017

For the first time, a UK employment tribunal has answered ‘no’ to this question, deciding that it was not permissible for an employer to pay a father on shared parental leave (SPL) less than they would pay a mother on maternity leave. 

Ali v Capita Customer Management Limited is significant as it contradicts government guidance which specifically said that employers did not need to mirror enhanced maternity leave benefits for employees on SPL. It is the first case to make this finding and may be a sign of a change in the tides in respect of family leave entitlements. 

The ruling covered the full 50-week period of transferrable maternity leave (that is, everything but the two weeks of compulsory maternity leave that a mother must take immediately after birth). It was direct sex discrimination for Capita to offer Mr Ali less pay during SPL, than they would have offered a female employee on maternity leave. The tribunal specifically permitted Mr Ali to compare himself to a woman on maternity leave. This is notable as previous cases have relied on the EU Pregnant Workers Directive (incorporated into UK law by the Equality Act 2010) to justify special treatment for mothers. Those provisions state that a man cannot complain about sex discrimination if a woman receives more favourable treatment which is connected to pregnancy and childbirth. 

This question of ‘when (if ever) does maternity leave stop being connected to pregnancy and childbirth and start being about childcare?’ will likely continue to divide opinion.

Previous case law
In Shuter v Ford Motor Co Ltd, the tribunal decided that paying a father less during additional paternity leave was not direct discrimination as a mother on maternity leave was not the correct comparator because she was in a unique situation. The tribunal found that it could be indirect discrimination. However, Ford was able to justify the different levels of pay as a measure to attract more women into a male dominated workforce. 

In Hextall v The Chief Constable of Leicestershire Police, the tribunal were quite scathing of a male police officer who sought equality of pay with a female officer on maternity leave. They held that mothers were in a fundamentally different situation for a number of reasons including the health and safety aspect of maternity leave, the compulsory element of it, and the fact that mothers have an absolute right to maternity leave whereas SPL is conditional upon the mother electing to curtail her maternity leave. In their view, the whole period of maternity leave was inextricably linked to pregnancy and childbirth and as such special treatment was not discriminatory. The tribunal also dismissed the indirect discrimination claim, arguing that such a claim could never get off the ground as this difference in pay was either direct discrimination (which they had rejected) or not discriminatory at all. 

A new approach in Ali
The specific facts of Ali were that Mr Ali’s wife was unable to care for their baby immediately after birth as she was suffering from post-natal depression and had been medically advised to return to work. This situation may not legally have justified a difference in approach, but it seems to have forced the tribunal to look at family leave entitlements with fresh eyes given that for this family, Mr Ali was clearly best placed to provide the full-time childcare. 

The tone of Ali was quite different from previous cases and it is refreshing to see the Judge expressly stating that ‘…it is also important to consider this claim in the context of parental roles and choices as they are in 2016. Either parent can perform the role of caring for their baby in its first year depending on the circumstances and choices made by the parents. Inevitably more mothers will take primary responsibility from birth and immediately afterwards but that does not necessarily follow. There may be circumstances where different choices are made to suit the parents and their particular circumstances…’. 

Some interesting thoughts
In both Hextall and Ford, emphasis was placed on the 14 weeks of maternity leave guaranteed by the EU Pregnant Workers Directive.  However, on closer inspection it does not appear that the Pregnant Workers Directive can necessarily justify a higher rate of pay reserved to mothers in the year after childbirth. It is a health and safety measure introduced to protect mothers in connection with pregnancy and childbirth. While the courts have tended to read into it a broader social aim of allowing mothers and babies to bond, that is not specified in the directive. All it does is require member states to guarantee 14 weeks of maternity leave, including two weeks of compulsory maternity leave, before or after childbirth. If all of this leave could be taken prior to childbirth, it is hard to see how it can be used to justify a difference in treatment for up-to a year after birth. This reflects the reasoning in the 2010 EU case of Roca Alvarez v Sesa Start Espana that while mothers are afforded some special protection, we need to recognise that parents of either gender can perform the function of caring for a child. The further away from the birth we get, the more difficult it is to coherently argue that a mother performing this function should be treated differently just because she is the mother.

It is also interesting that the UK statutory regime currently offers mothers on maternity leave an enhanced rate of 90% of actual pay for the first six weeks while SPL is only paid at the flat rate. The reasoning in Ali could form the basis of a challenge against that statutory regime. 

There has also been limited discussion in the case law on the impact of mothers who take SPL. Employers may struggle on the one hand to explain that all the higher pay offered to employees on maternity leave is inextricably linked to the fact that she has been pregnant and given birth, while on the other hand stating that regardless of the fact that she had given birth, if a mother chose to go on SPL rather than maternity leave in that same period, she would be paid the lower rate, simply because of the label attached to her leave. It would be very interesting to see a case where both parents worked for the same employer, but the mother felt pressure to be the one to take a year off work because she would receive an enhanced rate of pay and her partner would not. Both parents may feel aggrieved by their employer’s policies on pay appearing to take on a social engineering role encouraging mothers to stay home with the baby, while the predominantly male group of partners are encouraged to come to work. 

Practical tips for employers
It is likely that this question of when maternity leave stops being connected to pregnancy and childbirth, and starts being about caring for the child, will be considered in more detail by the employment appeal tribunal. 

For now, employers may want to review their family leave regimes and where there is a difference in entitlements, think about whether this practice still makes business sense. If it is financially viable to mirror enhanced entitlements for all employees taking leave to care for a child in its first year, employers may want to be proactive while there is still an opportunity to stay ahead of the curve and be seen as a market leader.  For those employers who currently offer more generous maternity pay than other family leave pay, if offering mirrored entitlements is unaffordable (or unattractive), they may wish to review their approach to supporting employees who have children now to create equal, but affordable, family leave arrangements.  However, many employers will no doubt continue with their ‘wait and see’ approach until an employee challenges the practice, or there is authority from a higher court which provides greater certainty on the legal requirements in this area and, potentially, forces change.