Direct sex discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sex compared with others in like-for-like circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive. To bring a successful claim, a claimant needs to establish a comparator, which can be a colleague or based on a hypothetical situation.
Employees who qualify have a right to take up to 52 weeks' AL. Where a couple (either a heterosexual or a same sex couple) is adopting a child jointly, and either would be eligible to take AL, they can choose which parent will take the leave and pay – the ‘main adopter’. The other parent may be able to take paternity leave or parental leave instead.
A woman who is eligible for SPL has the right to bring her maternity leave and pay period to an end early and convert the outstanding period of maternity leave and pay into a period of SPL, and pay that can be taken by either parent. The aim behind SPL is to provide opportunity for the mother’s partner to take on more childcaring responsibilities if the mother wishes to return to work.
In the case of Ali v Capita Customer Management Ltd, the Court of Appeal considered whether a man who was not offered enhanced shared parental pay despite female colleagues being entitled to enhanced maternity pay had been subjected to sex discrimination. Ultimately, they found he had not been as the circumstances of the provision of maternity pay were ‘materially different’. This was because the taking of maternity leave was for the health and wellbeing of the mother following the birth of her child.
In this case, the claimant inquired as to what shared parental pay he would receive should he take 37 weeks of SPL following the birth of his child. After being told he would be paid at the statutory rate, he decided not to proceed.
The organisation had a policy in which employees could receive enhanced maternity and adoption leave pay; in other words, they were paid more than the statutory minimum and, therefore, more than a man on SPL.
The claimant later brought to a claim of direct sex discrimination to the employment tribunal (ET). In bringing his claim, he identified two possible comparators:
- A female employee on maternity leave who was receiving maternity pay
- A female employee on AL receiving adoption pay
The tribunal dismissed his claims when considering both comparators.
When looking at the first comparator, the tribunal applied the Ali ruling, as this is binding on lower courts, outlining that his being on SPL was materially different to a woman on maternity leave. Whilst the tribunal did accept that there were more comparisons between him and the second comparator, and addressed five specific points put forward by the claimant, they ultimately held that the positions were not materially the same, meaning his claim had to fail.
The claimant appealed against the rejection of the second comparator.
The EAT dismissed his appeal.
The claimant argued that as the purpose of both forms of leave was to facilitate childcare, a comparison should be possible for the purposes of the law. He also stated that the Ali decision applied to maternity leave, not adoption leave, and the EAT were therefore invited to consider if the circumstances of that case could be transposed here.
The EAT ultimately did not uphold his argument, finding that that the purposes of AL went beyond childcare – as outlined in the Adoption and Children Act 2006, AL is important for the forming of a parental bond following the placement. As such, it was different to the position of SPL.
They then went on to evaluate the five material differences that the claimant had put before the original tribunal, which had been dismissed, to see if the tribunal had erred in its ruling. Their conclusions were as follows:
- The claimant had argued that neither of the forms of leave were compulsory, which the tribunal had disagreed with, finding that AL was compulsory. However, the EAT concluded that AL was not actually compulsory, meaning the tribunal had erred here.
- The tribunal had found the fact that AL could commence before the placement, but SPL could not, meant that the two forms of leave were not comparable. The claimant had disputed this, saying the fact that AL could commence 14 days earlier than SPL was not significant in the context of leave that could last 52 weeks. However, the EAT agreed with the reasoning of the tribunal.
- The tribunal had found that AL was an immediate entitlement upon the child’s placement, but SPL was not. The EAT also agreed with this.
- The claimant argued the fact that SPL could only be taken with one partner’s agreement to give up maternity leave was comparable to AL, where one partner had to agree to be the ‘main adopter’. However, the EAT found this argument problematic; a parent deciding not to be the ‘main adopter’ should not be seen as giving up an entitlement.
- The tribunal had also found that the two forms of leave work differently, with the aim of giving parents greater choice when it comes to childcare. The EAT agreed.
This ruling follows the Ali decision last year and once again confirms that SPL should be considered a different form of leave to maternity and, now, adoption leave, for the purposes of providing enhanced pay. This means that organisations can seek to do this and, at least for now, not need to worry about successful sex discrimination claims.
It should be noted, however, that take-up of SPL remains low, certainly more than the government no doubt initially hoped when it was introduced in 2015. To this end, whilst not offering enhanced SPL whilst enhancing maternity and adoption pay is not unlawful, it may make it more difficult for individuals to take SPL who otherwise would have done so, and lead to disputes that could have been avoided.