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Direct Sex Discrimination

Is failing to enhance shared parental leave payments to match enhanced Maternity pay direct sex discrimination?

In Capita v Ali the Employment Appeal Tribunal (EAT) held that failing to increase shared parental leave pay in line with enhanced maternity leave does not constitute direct sex discrimination.

Ultimately, this is because the main reason of shared parental leave differs from that of maternity leave. The purpose of maternity leave and pay is to protect the health and wellbeing of the woman during the pregnancy and post pregnancy.  Not for childcare reasons as the Employment Tribunal (ET) had original erroneously decided.

As the purpose of maternity leave and pay is to protect the woman, it cannot be compared against a father’s situation. Further to this, as shared parental leave is given on the same terms for men and women there is no direct sex discrimination when a higher maternity pay is given that would be given to either parent on shared parental leave.

The EAT also held that a higher rate of maternity pay constituted as special treatment under s.13(6)(b) of the Equality Act which could be afforded to a woman in connection with pregnancy or childbirth.

If you would like any further information on the above or advice on how they apply to your business then please contact Tom Evans, Associate Employment & HR.

Tom Evans Associate at DTM Legal Christmas HR blog

Contact Tom Evans

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