Alan McCormack | Senior Associate

Are enhanced maternity leave packages discriminatory?

Some employers choose to offer enhanced maternity leave packages to employees for a wide variety of reasons. The main motivations are usually to increase staff morale and to encourage female talent to the company. In 2019 the cases ofCapita Customer Management Ltd v Ali; Hextall v Chief Constable of Leicestershire Police (Court of Appeal) shone the light on these schemes and whether an employer, by offering an enhanced maternity package without offering the same for shared parental leave, are opening themselves up to a sex discrimination and/or equal pay claim. Both actions however found this not to be the case.

 There were two main justifications for this reasoning in both cases:

  1. A mother on maternity leave is not directly comparable with a partner on shared parental leave. A partner on shared parental leave is directly comparable with a mother on shared parental leave who would be on the same rate of pay, therefore direct discrimination does not apply.
  2. The further reason a partner on shared parental leave cannot compare themselves directly with a mother on maternity leave is that under the Equality Act 2010, maternity leave relates to special protection of the birth mother and includes recuperation and protection of the mother’s biological condition.

This special protection is also relevant for any equal pay claim (which is mutually exclusive of a sex discrimination claim).  Any argument that there is a lack of equality in a clause by not giving same rights of leave and pay to care for a new born baby between sexes ultimately fails because enhanced maternity  protection can be objectively justified on the basis it provides special treatment in connection with pregnancy and childbirth.

The court of appeal in Chief Constable of Leicestershire Police did not entertain the argument that a partner taking shared parental leave cannot elect to take maternity leave, whereas a mother on shared parental leave is making the conscious decision to take what is often a drop in income in order to share the leave with their partner. The uptake of shared parental leave is statistically very low and this is the primary reason, that if a mother can continue to on an enhanced maternity leave it is often not beneficial to drop salary for the sake of sharing caring duties with the other parent. The special protection afforded to a new mother is undeniable and required during maternity leave to regain heath and adjust. However, in the very later stages of maternity leave, when this protection is arguably less justified, and some companies continue to offer enhanced rates it may then become a question for a future tribunal to consider whether partners should be considered to take leave at the same rate on this basis.  

Should you require any advice in relation to any issues involving maternity pay or discrimination, please do not hesitate to get in touch with our specialist team today.

Alan McCormack

Alan McCormack

Employment Law Team

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