Shared Parental Leave

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Shared Parental Leave

View profile for Kirsty Hunt
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Does it amount to discrimination if an employer enhances maternity pay but does not enhance pay for those taking shared parental leave?  

No, held the Court of Appeal in the case of Capita v Ali and Hextall v Chief Constable of Leicestershire [2019] EWCA Civ 900.

The Court of Appeal held that the enhancement of maternity pay and not shared parental leave pay neither amounted to direct or indirect sex discrimination on the basis a man on shared parental leave could not compare himself to a birth mother on maternity leave, as only women can experience childbirth and maternity leave, which is why they have “special protection” under EU law. 

Shared parental leave is designed for the purpose of childcare, whilst maternity leave is intended to protect the health and wellbeing of a pregnant and/or birth mother. The correct comparator here would have been a female also on shared parental leave, not a female on maternity leave. 

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