Contractual maternity, shared parental or adoption pay

The employment contract may provide more generous terms for payment of contractual maternity, adoption, paternity or shared parental leave pay, which may have been collectively agreed by your union.

SMP, SAP and SShPP must all be paid whether or not a woman returns to work. By contrast, there is nothing to stop employers making more generous contractual schemes conditional on a return to work for a set period, and repayable (except the statutory element) if the employee does not return (Handels-og Kontorfunktionaerernes C-66/96 [1999] IRLR 55). This kind of arrangement is not unusual, including in the public sector, such as the NHS.

It is now established law that paying enhanced maternity pay to women on maternity leave while only paying statutory shared parental pay to men who take statutory parental leave is not sex discrimination, whether direct or indirect (Ali v Capita Customer Management Limited (Working Families intervening); Chief Constable of Leicestershire Police v Hextall [2019] EWCA Civ 900). The Supreme Court has refused permission to appeal this Court of Appeal ruling, which is now binding.