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Pay terms for shared parental leave: the implications of Ali and Hextall

The Shared Parental Leave Regulations 2014 (SI 2014/3050) provide the non-maternal parent or carer (usually, but not always the father) with the right (subject to statutory conditions) to take leave from work to share in a baby’s primary care. A DBEIS press release earlier this year suggested take-up of shared parental leave (SPL) may be as low as 2%. There may be many reasons for this, such as:

  • The longstanding cultural status quo that childcare is the mother’s role.
  • Fear of workplace repercussions.
  • Gender pay gaps rendering the male partner the more likely principal breadwinner.
  • Lack of knowledge of the right.
  • Complexity of the forms.

One possible reason derives from the asymmetry between contractual maternity leave pay provisions and those for SPL.

In the recent EAT cases of Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire Police, Slade J considered whether less generous contractual pay provision for SPL amounted to direct or indirect discrimination. Direct discrimination was the focus of the Ali appeal, while Hextall focused on indirect.

Narrowing issues for future arguments

Slade J’s judgments raise a number of questions, and this blog concentrates on the judgments’ potential role in future justification arguments in indirect discrimination claims. I need to explain first why that is my focus.

It is hard to see a direct discrimination claim based on differential pay under contractual maternity leave and SPL regimes succeeding. This is not due to the main line of reasoning in Ali (concerning maternity leave’s primary purpose) but the more muted (and far simpler) line. While maternity leave is only open to women, SPL is open to both men and women. Those women are not only mothers who have curtailed their maternity leave, but also, for example, the same-sex wife or civil partner of the maternal parent. There is thus no exact correspondence between the protected characteristic (sex) and the ground of less favourable treatment (pay at a lower contractual level for SPL than for maternity leave). That lack of exact correspondence must be fatal to a direct discrimination claim (see the Supreme Court’s reasoning in Taiwo v Olaigbe).

The focus should thus be on indirect discrimination. The EAT decision in Hextall does not take us very far. Slade J held the ET failed properly to identify the particular disadvantage. This meant that the analysis of the remaining elements of indirect discrimination was flawed. It becomes clear on proper characterisation of the particular disadvantage, namely that mothers can choose between SPL and the preferential pay of maternity leave while fathers have no choice, that justification is likely to be the main battleground.

In Hextall, the ET (obiter) found against the police on justification. There was no cross-appeal against that finding, though presumably justification will be at large on remission.

Primary purpose of maternity leave and its impact on justification

Without indicating her own view, Slade J considered that material differences between taking maternity leave and SPL may be relevant to the justification exercise. That is the likely context of future battles on Slade J’s analysis of maternity leave’s purpose.

That analysis is to be found in the judgment in Ali. Slade J relies heavily on the Pregnant Workers Directive (PWD), which:

  • Provides a right to continuous maternity leave of at least 14 weeks.
  • Emphasises repeatedly the protection of the mother’s health and safety post-childbirth.

Those elements of the PWD convinced Slade J that maternity leave’s primary purpose (both during and after compulsory maternity leave) is to protect the new mother’s health and safety, rather than to care for the new-born baby.

Coincidentally the maternity leave policy under Mr Ali’s contract provided for 14 weeks’ full pay, corresponding to the minimum period of maternity leave under the PWD, so Slade J did not need to consider for how long the health and safety primary purpose applies. In Ali, Slade J was open to the possibility, suggested by Working Families (intervening), that after 26 weeks the purpose of maternity leave may change. That raises a number of questions:

  • First, what is the magic in 26 weeks? It is the length of ordinary maternity leave in the UK, but there is no suggestion it was picked to harmonise with biological recovery. Why does acceptance of the logic on change of purpose after 26 weeks not apply equally on exhaustion of the 14-week minimum entitlement under the PWD?
  • Second, both the PWD and domestic rights entitle the commencement of maternity leave before childbirth. The PWD specifies no limit, while domestically maternity leave can commence from the eleventh week before the expected week of childbirth. The PWD thus anticipates entitlement to less than 14 weeks between giving birth and returning to work. How is that consistent with holding the PWD period of maternity leave is for biological recovery?
  • Third, when to commence maternity leave is the mother’s prerogative and is decided prior to childbirth. The endpoint of the leave entitlement post-childbirth is not governed by the mother’s biological needs.
  • Fourth, a protective purpose is difficult to square with the entitlement after the compulsory two-week period to curtail maternity leave and to return to work.
  • Fifth, Slade J’s judgments are arguably out of synch with EU legislative moves. In particular, on 26 April 2017 the European Commission put out a proposal for a directive on work-life balance for parents and carers. The proposal’s two specific objectives include an increase in the take-up of family related leave and flexible work arrangements by men. It also recognises that a main cause of the gender employment gap is the unbalanced design of leave between genders.
  • Finally, while special features of maternity leave may explain why employers contract to pay above statutory maternity pay, it is difficult to see how those features can also justify not paying men on SPL on a like basis. Employers may have great difficulty establishing justification defences that are not impermissible cost-based defences.

It may well be that future tribunals decide differential pay provision for the different forms of leave is justified, but it will be interesting to see whether Slade J’s judgment in Ali forms the central plank of justificatory reasoning or whether, as I suspect, her analysis is chipped away at as time and social convention moves on.

(With thanks to Chris Milsom (counsel for the intervener in both appeals) for his assistance on this article)

Field Court Chambers Jason Braier

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