Court of Appeal takes new look at Equality Act exceptions for pregnancy and childbirth

Last month’s decision from the Court of Appeal should dispel any remaining doubts about whether employers are legally required to pay fathers taking shared parental leave as generously as mothers on maternity leave. In two related appeals from last year’s decisions in the Employment Appeal Tribunal, the Court of Appeal has said that no breach of the Equality Act is involved in giving birth mothers enhanced pay while they are on maternity leave, but only paying statutory shared parental pay to fathers taking shared parental leave.

The first of these cases (Ali v Capita Customer Management) was a claim for direct sex discrimination. In the second (Hextall v Leicestershire Police) there was an issue as to whether the proceedings should have been framed as an indirect discrimination or equal pay claim. In both cases the Court of Appeal ruled that the employers could rely on the Equality Act exception which states that where the claimant is a man “no account is to be taken of special treatment afforded to a women in connection with pregnancy or childbirth”.

The Court of Appeal was not impressed with arguments that periods of statutory maternity leave with enhanced pay in excess of the compulsory two week period should not be regarded as connected with pregnancy and childbirth. It is possible, however, that it might have been more open to such arguments if the period of enhanced statutory pay had been significantly in excess of the 14 week protected period guaranteed by the Pregnant Workers’ Directive (the period of full pay was 14 weeks in Ali and 18 weeks in Hextall).

It also rejected arguments that it was significant that the childbirth and pregnancy exception does not appear in the definition of indirect discrimination in the Equality Act. As well as more technical observations about the selection of the pool for comparison purposes, it said that it would be “very odd” if arrangements which fell within the exception in relation to direct discrimination and equal pay would still need to be scrutinised under the Act’s provisions on indirect discrimination.

Subject to any final appeal to the Supreme Court, it does now seem that the arguments about the lawfulness of enhancing statutory maternity pay (certainly for the first 14 weeks of leave) while failing to enhance statutory shared parental pay have been settled. However, that doesn’t mean that all arrangements with regard to shared parental leave will necessarily be given a clean bill of health, or that the pressure to give fathers caring for new-born children better rights will diminish.

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