Strategic equality litigation challenges statutory shared parental pay 


Two strategic tribunal cases have been launched to challenge employer policies of paying enhanced maternity pay while not enhancing statutory shared parental pay, based on direct and indirect sex discrimination. 


The EAT has ruled that it is not direct sex discrimination for an employer to pay enhanced maternity pay to women while only paying statutory shared parental pay to men. In Capita Customer Management Limited v Ali [2018] UKEAT/0161/17/BA, the EAT said that a man on shared parental leave is not allowed to compare himself with a woman on maternity leave. She is not an “appropriate comparator”, said the EAT. This is because the main purpose of maternity leave is to protect the health and safety of women who have recently given birth or are breastfeeding, whereas the main purpose of shared parental leave is to take care of the child. According to this case, the man should have compared himself with a woman on shared parental leave. On this basis, there was no less favourable treatment, so the claim failed. 



The EAT were sympathetic to a suggestion by charity Working Families that after the first six months of leave, the purpose of maternity leave may have changed from taking care of the mother's health to caring for the child, allowing for a valid comparison between the man and the woman at that stage. However, said the EAT, this kind of change to the law is a matter for parliament, not the courts.

Although not direct sex discrimination, there may be indirect sex discrimination. Indirect discrimination is not unlawful provided the employer can objectively justify their policy as a proportionate means of achieving a legitimate aim (see Chapter 7, page 230). Any employer would need to provide a justification that is not purely financial, since the law does not generally allow employers to pay one sex less than the other just because there is not enough money to go around. In the ongoing case of Hextall v Chief Constable of Leicestershire Police [2018] UKEAT/0139/17/DA, the EAT has asked a tribunal to rule as to whether the policy of Leicestershire police force to refuse full pay to male officers on shared parental leave while paying 18 weeks’ full pay to female constables on maternity leave amounts to indirect sex discrimination. If so, the police force will need to provide objective justification for the policy, perhaps by arguing that enhancing maternity pay encourages the recruitment and retention of women after maternity leave, as an under-represented group in the police.

This was the basis of the employer’s successful defence in the case of Shuter v Ford Motor Company Limited ET/3203504/13, a claim for sex discrimination by a male engineer who challenged the car manufacturer’s policy of paying enhanced maternity pay to women, while only paying statutory additional paternity pay to men. In this case, an employment tribunal accepted Ford’s evidence that its policies were part of a long-term plan to recruit and retain more women, who were under-represented in its workforce. Ford produced statistical evidence to back up this defence, showing that Ford’s workforce in the affected part of the business was just 6.2% female in 1999, rising to just 8.9% by 2013.