Ali v Capita Customer Management Ltd and another; Chief Constable of Leicestershire Police v Hextall and another [2019] EWCA Civ 900

Facts

Mr Ali was employed by Capita as a business customer adviser; Mr Hextall was a police constable in Leicestershire. Both decided to take shared parental leave (SPL) when they became fathers. Both employers offered enhanced maternity pay to women taking maternity leave but only offered statutory shared parental pay to those taking SPL. Mr Ali and Mr Hextall brought employment tribunal claims: Mr Ali argued that the failure to pay him the equivalent of enhanced maternity pay amounted to direct discrimination contrary to the Equality Act, and Mr Hextall claimed indirect discrimination.

Decision

The Court of Appeal held that the claimants did not suffer discrimination. In Mr Ali's case, the proper comparator was a female worker on SPL. She would have received the same amount of pay so his claim failed. Mr Hextall's claim should have been characterised as equal pay rather than indirect discrimination. Since an equal pay claim cannot be brought in relation to terms that afford special treatment to women in connection with pregnancy or childbirth, his claim had to be rejected.

Comment

This is a helpful decision for employers who enhance maternity pay but not shared parental pay. Even before SPL was introduced, there was debate among employment lawyers about whether it would be discriminatory to pay enhanced maternity pay to women but only statutory shared parental pay to men. The Government's guidance stated that it would not be discriminatory and it is good to have this confirmed. However, both claimants are seeking leave to appeal to the Supreme Court so the story may not end here. Even so, it is hard to see how their claims can succeed as the Court of Appeal decision is very clear.