On 24 May 2019 the Court of Appeal dealt a blow to men seeking enhanced pay when taking shared parental leave (SPL). In the combined cases of Ali v Capita and Hextall v Leicestershire Police the court held that new mothers, who qualify for enhanced pay while on maternity leave, were in a category which only new mothers could occupy and attempts by their partners to claim equal enhanced rights when exercising their right to SPL were bound to fail.

Madasar Ali claimed that he was the subject of direct discrimination, while Anthony Hextall had claimed he was the subject of indirect discrimination. The Court of Appeal, led by Sir Terence Etherton MR, held that the terms of the Equality Act 2010 (EA) specifically provided for new mothers to benefit from better terms of employment on the grounds that they were recovering from the physical and psychological effects of pregnancy and childbirth.

The court held that s 66 of the EA, which would have otherwise have amended the men’s contracts to insert an equality clause, was subject to s 13(6)(b), which makes clear that any claim of direct discrimination by a man could not take into account special treatment offered to a woman in connection with pregnancy or childbirth. It further ruled that s 70, and para 2 in part 1 of sched 7 to the EA, which reads: “A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth”, meant that Hextall’s claim could not succeed.

However, although the judgment is a lengthy and clearly considered one, it appears that the court simply decided not to consider the substance of the argument that Hextall was indirectly discriminated against because he was subject to a provision, criterion or practice which had the effect of discriminating against men.

It is understood that the court’s treatment of the indirect discrimination case will be the subject of an appeal to the Supreme Court. Further, although not specifically relevant to the cases raised by Ali and Hextall, it is understood that it will be argued that the judgment was flawed in that it failed to consider the right of adoptive parents to nominate either party to receive enhanced rights otherwise only available to a mother.

A final decision is not expected until sometime in 2020. Depending on whether the UK is still a member of the EU at that time, the case could yet end up in front of the CJEU, which would cause great unhappiness in a variety of quarters!

In the two appeals considered by the court, both employers offered enhanced maternity pay to new mothers, but only statutory parental leave and pay to parents of either gender exercising their right to take shared parental leave.

The full judgment, which is not an easy read, can be found at this link.