Yes, held the Court of Appeal in the recent joined appeals brought by two male employees. Both male employees worked at organisations where their female colleagues were entitled to enhanced contractual maternity pay, whereas for those employees taking shared parental leave, all that was available was statutory shared parental pay. The male employees argued that their respective employers’ failure to pay them enhanced parental pay for taking shared parental leave equivalent to the enhanced maternity pay amounted to direct or indirect sex discrimination.
The Court of Appeal held that the correct comparator in the direct discrimination claim was a female worker on shared parental leave. This meant that the direct discrimination claim inevitably failed because the female comparator would be paid the same as the male employee. Therefore, the male employees could not show that they had been treated less favourably.
The Court’s reasoning as to why a male employee taking shared parental leave could not compare himself with a woman on maternity leave included the fact that the court considered that there were many important differences between shared parental leave and statutory maternity leave including:
Furthermore, the court held there was no indirect discrimination because men and women in the comparison pool (those on shared parental leave) were not placed at any particular disadvantage by that policy, criteria or practice. A male employee should be compared to female partners on shared parental leave and not with birth mothers. The court went on to state that even if paying women on maternity leave more than men on shared parental leave was in indirectly discriminatory, it would be objectively justified as a proportionate means of achieving a legitimate aim of protecting the special treatment of mothers in connection with pregnancy and childbirth.
There are also specific provisions in the Equality Act 2010 which prevent claims for discrimination or equal pay from being made in relation to any special benefits afforded to women in relation to pregnancy and childbirth. Enhanced pay for mothers during maternity leave falls under these special exceptions, allowing a pay differential between men and women.
Employers that operate different rates of pay for shared parental leave and maternity leave will welcome this decision although there may be an appeal to the Supreme Court.
For the time being however, it provides clarity that unequal maternity pay and shared parental leave pay is not discriminatory or a breach of equal pay legislation.
You can read more about this case here