"I am HR Manager at a company which provides enhanced maternity pay. A male employee who is about to take shared parental leave has asked for confirmation that he will also receive enhanced pay. I want to treat employees equally, but I’m unsure of the legal position. How do I handle it?"

Your issue highlights a controversial aspect of the interaction between anti-discrimination law and the various types of “family” leave available in the UK, which was recently considered by the Court of Appeal in the conjoined cases of Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police [2019]. Its decision has clarified the law in this area, which had been left uncertain by conflicting decisions in the employment tribunals.

Both Capita and the Leicestershire Police provided male employees with statutory shared parental pay whilst their female colleagues benefited from an enhanced maternity scheme. Separate employment tribunals considered whether this practice amounted to direct or indirect discrimination on the grounds of sex and reached slightly different decisions. In Ali, the Tribunal made a finding of direct discrimination but dismissed the indirect discrimination claim. In Hextall, both claims were dismissed. The finding of direct discrimination in Ali was overturned on appeal, whilst several issues in Hextall were referred back to the Employment Tribunal to consider. Both Claimants then appealed to the Court of Appeal.

In short, both appeals were dismissed, and the Court of Appeal made several important distinctions between the different types of “family” leave which prevented either of the male claimants from comparing themselves to a female colleague, a necessary component of a discrimination claim. The Court of Appeal found that the purpose of maternity leave, unlike the other types of “family” leave (paternity, parental or shared parental), is not merely the provision of childcare. Rather, maternity leave allows the mother to recuperate from her pregnancy and childbirth, breastfeed and bond and care for the child. The availability of shared parental leave to both parents does not change this underlying purpose, which addresses issues that are exclusive to the birth mother and not shared by her partner.

This difference in purpose between women taking maternity leave and either men or women taking shared parental leave means that the correct comparator for a man taking shared parental leave is a woman taking shared parental leave also, rather than a woman taking maternity leave.

This decision should provide you with welcome clarity on the legal position. You do not have to provide male employees with enhanced shared parental pay simply because you offer enhanced maternity pay to their female colleagues. You might wish to do so anyway, but you can reach your decision based on your company’s resources, culture and policies on employee/family matters. Several large employers have publicly adopted enhanced shared parental pay schemes.

In the medium term, it is worth noting that this decision may be subject to a further appeal to the Supreme Court. In the longer run, the shared parental leave and pay scheme may change, given its relatively low uptake by fathers and current discussions in the UK and EU on extending paternity leave and pay.