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This article was published on July 3rd, 2019
The Court of Appeal has decided that it is not discriminatory for an employer to pay men on shared parental leave less than birth mothers on statutory maternity leave. The Court of Appeal looked at the issue in a series of joined cases, including Hextall v Chief Constable of Leicestershire Police. In all the cases, men claimed direct or indirect discrimination for being paid less for shared parental leave than a woman on maternity leave.
The special treatment women receive in relation to pregnancy and childbirth is a legal exception to the rules on discrimination. The Court of Appeal said that the correct comparator in a direct discrimination claim is a woman taking shared parental leave, not a woman on maternity leave. On that basis, there was no discrimination in these cases since men and women on shared parental leave would be paid at the same rate.
The Court went on to say that any claim relating to a contractual difference in pay between men and women should be brought as an equal pay claim, not an indirect discrimination claim. Any special treatment afforded to women in connection with pregnancy and childbirth is a defence to an equal pay claim, just as it is for direct discrimination. A man cannot get around the law by bringing an indirect discrimination claim on the same facts if he is prevented from bringing an equal pay claim because of the ‘special treatment’ exception.
The Court of Appeal pointed out that maternity leave is designed to protect a woman’s health and safety in late pregnancy as well as allow time to recover from childbirth and facilitate breastfeeding. These are things which affect the birth mother exclusively, not the father. Maternity leave isn’t just childcare and is different to parental leave by design.