Employment Law Speed Read – 03/06/19

Background

Ali v Capita Customer Management Ltd

Mr Ali’s wife gave birth in February 2016, shortly afterwards she was diagnosed with post-natal depression and advised to return to work. Mr Ali decided that he would stay at home and care for the child. He was informed by his employer that he was entitled to SPL, but would be paid statutory pay. Mr Ali argued that he should be entitled to what female employees received under Capita’s enhanced maternity pay policy and was successful in his claim for direct discrimination in the Employment Tribunal (ET).

However, in April 2018, the Employment Appeal Tribunal (EAT) held that Capita had not directly discriminated against Mr Ali by not paying him the higher pay rate paid to women taking maternity leave. The EAT concluded that Mr Ali could not compare himself with a woman on maternity leave – maternity leave is for the health and wellbeing of the mother, whereas the purpose of SPL is to care for the child. The EAT held that he was entitled to compare himself to a woman taking SPL, but as this was given by Capita on the same terms for both men and women, there was no direct discrimination.

Chief Constable of Leicestershire Police v Hextall

Mr Hextall took a period of SPL after the birth of his child when his wife, who runs her own business, returned to work. His employer also paid enhanced pay for maternity leave, but not for SPL. Mr Hextall’s claims for direct and indirect discrimination were dismissed by the ET.

On appeal, the EAT held that the ET had erred in its application of the appropriate test for indirect discrimination and remitted the case to a fresh ET to consider the appropriate pool for comparison.

Court of Appeal

The two cases were combined and heard in the CoA on 1 and 2 May 2019. The CoA considered the various claims brought and decided as follows:

Direct discrimination

• There was not direct discrimination, as a man on SPL is not in comparable circumstances to a mother on maternity leave, who is afforded special treatment for health and safety purposes.
• The correct comparator for a man on SPL was a woman on SPL, not a woman on maternity leave.
• As both men were entitled to be paid the same as a woman on SPL, their direct discrimination claims failed.

Equal pay

• A claim that contractual SPL pay is less favourable than contractual maternity pay was properly characterised as an equal pay or equality of terms claim.
• Although the Equality Act 2010 (EqA) implies a sex equality clause into all contracts of employment – it will not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth. Therefore, any equal pay claim by a man on SPL pay would fail, even if the terms were truly comparable.

Indirect discrimination

• There is an exclusion for indirect discrimination claims where there was also an equal pay claim, even if that claim failed due to the statutory exception in the EqA.
• Although it was not necessary for the CoA to decide on the indirect discrimination claim, in any event, the claim would have failed because:
  • Men and women in the comparison pool were not placed at a particular disadvantage by that policy, criteria or practice; and
  • The special treatment of mothers in connection with pregnancy or childbirth was proportionate and legitimate.

Comment

This decision provides important clarity for employers, and confirms that it is not discriminatory to provide enhanced maternity pay and statutory shared parental pay. However Mr Ali and Mr Hextall are seeking leave to appeal to the Supreme Court and as such, this may not be the end of the issue.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.