The Equality Act 2010 also states that when considering whether a man has been discriminated against because of sex no account is taken of special treatment afforded to women in connection with pregnancy or childbirth. There are limits to this special treatment however - in the Eversheds Legal Services Ltd v De Belin case - the EAT held that pregnant employees and those on maternity leave should be treated more favourably only to the extent that is reasonably necessary to remove any disadvantage caused by their condition. In that case that meant that unfairly inflating a redundancy score for a female on maternity leave which resulted in her male colleague being selected forredundancy was sex discrimination.
However, in the case of Ali v Capita Customer Management Ltd, an Employment Tribunal has decided that the failure of the employer to match their enhanced maternity pay with enhanced shared parental pay is direct discrimination.
Mr Ali had been subject to a TUPE transfer from Telefonica to the Respondent in 2013. Female employees who had transferred were entitled under a Telefonica policy to 14 weeks enhanced maternity pay. Because the transfer took place prior to the introduction of SPL the Telefonica policy allowed for 2 weeks paternity leave on full pay and up to 26 weeks additional paternity pay which "may or may not be paid". By the time of his child's birth SPL had been introduced, but Capita only provided for statutory shared parental pay.
Mr Ali took two weeks paternity leave benefitting from the enhanced pay. His wife was diagnosed with post natal depression and advised that a return to work would assist her to recover. For that reason the family wanted Mr Ali to make use of his statutory right to shared parental leave. However, when Mr Ali learned that he would only be paid at the statutory rate he was deterred from requesting the leave. He lodged a grievance asserting he should be paid at the same rate as a female ex-Telefonica employee for the first 14 weeks of leave. His grievance was rejected.
Before the Tribunal Mr Ali argued that because parents could chose which one of them took SPL it followed that it was sex discrimination to pay the mother more than a man in respect of that leave. He claimed both direct and indirect sex discrimination.
Capita responded by arguing 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 on the provisions of the Equality Act 2010 that meant the special treatment afforded to women in connection with pregnancy and childbirth could not be taken into account when attempting to establish sex discrimination.
The Employment Judge ("EJ") upheld the direct discrimination claim but not the indirect discrimination claim. The EJ found that the denial of full pay was less favourable treatment and the reason for it was Mr Ali's sex. The Equality Act 2010 did not prevent comparison with a hypothetical female colleague who would have received the enhanced pay under the maternity policy. To reach this conclusion they had found that the enhanced maternity pay was not special treatment in connection with pregnancy and child birth, rather it was special treatment for caring for a newborn, something which, after completion of the two week period of compulsory maternity leave, either parent could do. The indirect discrimination claim failed because Mr Ali was relying upon the maternity policy as the PCP which led to the discrimination. A maternity policy cannot be gender neutral (a requirement for a PCP in an indirect discrimination claim) so that claim had to fail.
This case raises the very subjective question of when leave stops being connected with pregnancy and child birth and starts being connected only to the care of a baby. It is in contrast to an earlier Tribunal case - Hextall v Chief Constable of Leicestershire Police - where it was held that enhancing maternity pay but not shared parental pay was not discriminatory. In that case the Tribunal had been of the view that maternity leave and pay were special treatment afforded to women in connection with pregnancy and childbirth, and the enhancement of pay did not go further than reasonably necessary.
One aspect that was not argued before the Tribunal in Ali was whether a valid comparison can be made between a male on SPL and a female on maternity leave. A valid comparator is one whose circumstances are not materially different from the claimant. In Hextall, the Tribunal had taken into account that a woman could have taken SPL, and had she done so she would have been treated the same way (in respect of pay) as a man taking SPL. They took the view that the correct comparator was a female taking shared parental leave, not one on maternity leave, and therefore there was no less favourable treatment.
There is not, as yet, any Employment Appeal Tribunal or other higher court authority on this point, however it is understood that both Hextall and Ali are being appealed to the EAT. Appellate authority will bring some welcome clarity on this point.