Contractual maternity, shared parental or adoption pay 




The employment contract may contain 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 as to 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.


The EAT has confirmed 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 Managemenr LImited v Ali [2018] UKEAT/0161/17/BA, the EAT said that a man on shared parental leave is not allowed to compared himself with a woman on maternity leave. 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. 


The EAT were sympathetic towards a suggestion by charity Working Families that by the end of the first six months of maternity leave, the purpose of the 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, any change to the law on this basis would have to be for parliament, and not the courts, to decide.