The Court of Appeal in (1) Capita Customer Management Ltd v Ali & (2) Chief Constable of Leicestershire v Hextall [2019] EWCA Civ 900, has overturned the Employment Appeal Tribunal and held that employees do not unlawfully discriminate against men when when paying them less for shared parental leave than they pay women when taking enhanced maternity pay as part of maternity leave. Such claims are not sex discrimination claims but equal terms claims, to be brought under the Equal Pay Act 1970, which are bound to fail because they relate to terms of work affording special treatment to woman in connection with pregnancy of childbirth. An appeal to the Supreme Court is possible.

It was a truth universally acknowledged, that a man, upon the good fortune of having a child, could not claim to enjoy as good parental leave terms as his wife (or partner) on maternity leave. Universally acknowledged, that is, until the decision of the Employment Appeal Tribunal (Slade J) in Hextall v Chief Constable of Leicestershire (2008) UKEAT/0139/17/DA, that paying men (and women) only the statutory rate for taking shared parental leave potentially amounted to indirect sex discrimination pursuant to Equality Act 2010 s19. This, she held, was because those women who were birth mothers had the far better alternative of taking maternity leave rather than shared parental leave.

The implications of this decision were not lost on employers up and down the country who were likely to be faced with claims from men seeking to have their shared parental leave pay equalised with potentially generous maternity pay terms of their female colleagues. Employers considering improving their maternity leave terms faced a significant disincentive. 

Slade J also (correctly) decided, in Ali v Capita Customer Management Ltd (2008) UKEAT/0161/17/BA, that there was no direct discrimination between men and women in relation to enhanced maternity pay because maternity leave and pay amount to special treatment afforded to women in connection with pregnancy or childbirth, so activating the Equality Act 2010 s13(6)(b) defence to direct sex discrimination claims).

The Chief Constable and Mr Ali appealed. Slade J granted Mr Ali permission to appeal but refused it to the Chief Constable, who had to obtain it from the Court of Appeal. That court (the Master of the Rolls, Lord Justice Bean and Lady Justice Rose) essentially accepted all of the Chief Constable’s arguments. In so doing, they accepted the Chief Constable’s submission that claims such as these are properly characterised not as sex discrimination claims but as equal terms claims (formerly claims which would have to be brought under the now repealed Equal Pay Act 1970) which are bound to fail because they relate to terms of work affording special treatment to women in connection with pregnancy or childbirth.

In the case of the police, female officers are specifically entitled under statute to (rightly) generous maternity leave of up to 15 months, pay of up to 18 weeks at full pay and 6 weeks enhanced maternity pay (90% of salary), 33 weeks of statutory maternity pay (equal to statutory shared parental leave pay) and then 8 weeks unpaid before their return to work. PC Hextall’s wife was a self-employed businessperson who gave birth to their child. She had no employer to pay her maternity pay but he was entitled to take shared parental leave as a result of the birth of their child, under the force’s shared parental leave policy, which had effectively been approved by the Home Secretary.

At the employment tribunal, PC Hextall argued that there was a provision, criterion or practice (“PCP”) that those taking shared parental leave would be paid only at the statutory rate, whether they were men or women. He argued that that PCP put men at a particular disadvantage when compared with women to whom it was applied because they could, instead of taking shared parental leave, take advantage of their very generous maternity leave and pay terms, such that the PCP would have to be justified. He submitted that the PCP could not be justified because it would be inherently discriminatory and claimed. He claimed the difference between statutory shared parental leave pay and the pay which he would have been receiving had he been a female police officer taking maternity leave after giving birth.

To avoid the problem that an equal terms case would be barred on the grounds that the difference in terms related to terms of work affording special treatment to women in connection with pregnancy or childbirth, PC Hextall submitted that male and female police officers’ terms and conditions were identical but that male officers were unable to take advantage of maternity leave because they could not give birth.

The Court of Appeal held that, just because an employee or office-holder’s terms and conditions set out certain terms which did not apply to them, eg. London weighting or, in the case of the police, the pay for officers of other ranks, this did not mean that those terms actually applied to them. It was even clearer in the case of police officers because the Police Regulations 2003 only permitted the Home Secretary to provide in a Determination for maternity pay and leave for “female members of the police forces” - not males.

Even if there were any difference in terms between him and a female officer, PC Hextall submitted that he was not relying on it. But the Court of Appeal held that his claim was, in effect, exactly that, despite this disavowal.

The Court held that the equal terms claim was bound to fail because of the effect of Equality Act 2010 sch 7 para 2, which rendered the sex equality clause of no effect “in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth”. Insofar as the claim was, in truth, an equal terms claim, Equality Act 2010 s.70(1)(b), concerning to the exclusion of sex discrimination provisions, barred any sex discrimination claim.

The analysis did, however, not end there because there is an exception to the bar on bringing equal terms claims as discrimination claims. It is contained within Equality Act 2010 s.71 and permits equal terms claims defeated by paragraph 2 of Schedule 7 to be brought as direct discrimination claims. But for the reasons given by Slade J in the EAT judgment of Capita v Ali, that direct discrimination claim would be doomed, first because of the operation of Equality Act 2010 s13(6)(b) providing that “no account is to be taken of special treatment afforded to a woman … in connection with pregnancy or childbirth” and, secondly, because Equality Act 2010 s.23 would operate to exclude birth mothers taking maternity leave from any comparison because there was a material difference between their circumstances and those of others who are taking leave to care for their child, given the special purposes of maternity leave (see below).

For good measure, the Court went on to consider whether, even if an indirect sex discrimination claim was not barred by s.70(1)(b), the alleged PCP would cause the requisite particular disadvantage to men in comparison with women in the appropriately drawn pool. Despite the general derogation in the Equal Treatment Directive 76/207/EEC article 2(3), which permitted the s.13(6)(b) pregnancy or childbirth exception for direct discrimination claims, Parliament did not include any such exception for indirect discrimination when enacting the Equality Act 2010, as it had otherwise done with the Sex Discrimination Act 1975 which the Act was replacing. It appears likely that that was an oversight. But the Court pointed out that Equality Act 2010 s.23, which requires that a comparison between two people for the purposes of either direct or indirect discrimination can be made only if there is no material difference between their circumstances, applies equally to indirect discrimination claims. That means that women taking maternity leave have to be excluded from the pool for comparison of the impact of the PCP on men and women.

For good measure, the Court further held that, if they were wrong about the composition of the pool for testing the PCP, they would, unlike the employment tribunal and the Employment Appeal Tribunal, have been prepared to hold that any disadvantage to the claimant was justified as being a proportionate means of achieving a legitimate aim, namely the special treatment of mothers in connection with pregnancy or childbirth.

 - In an odd twist, the court was satisfied that the Queen’s Printer’s copy of the Equality Act 2010 contained a clear error in s.70(1)(b), where it referred to “part 2 of schedule 7” instead of paragraph 2. In clear cases, the courts can identify obvious errors in statutes and read in the correct words: Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, HL.

Purpose of maternity leave

At the heart of the judgment is a rejection of the assertion that women on maternity leave, which continues beyond the compulsory 2-week (4-week in factories) period after birth, are taking maternity leave (merely) for the purpose of caring for their child, exactly as is their partner on paternity or shared parental leave.

The Court accepted the Chief Constable’s formulation of the six different purposes of statutory maternity leave:-

(1) to prepare for and cope with the later stages of pregnancy;

(2) to recuperate from the pregnancy;

(3) to recuperate from the effects of childbirth,

(4) to develop the special relationship between the mother and the newborn child;

(5) to breastfeed the newborn child (recommended for a period of six months by the World Health Organisation); and

(6) to care for the newborn child.

(1) – (5) are, of course, unique to women taking maternity leave in connection with the birth of their child, a goodly proportion of which may, of course, be taken before the birth of the child, so as to be nothing to do with childcare. That is why no comparison, for the purpose of sex discrimination claim by a male employee or officer can be made.

Conclusion

It is a truth universally acknowledged, that a man, upon the good fortune of having a child, cannot claim to enjoy as good parental leave terms as his wife (or partner) on maternity leave.

It might be asked as to what would be the position where an employer chose to create a very generous maternity pay and leave scheme? They probably could not choose to pay women more than their actual pay: see Eversheds v Legal Services De Belin [2011] UKEAT 0352_10_0604; [2011] ICR 1137, EAT. Even that is not completely certain: see Abdoulaye v Régie Nationale des Usines Renault SA [1999] EUECJ C-218/98; [2001] IR 527, ECJ). But what about a scheme providing, say, for maternity leave of up to two years, all of it attracting full pay? The answer might be that the latter period of such a scheme would cease to be for the purposes (1) – (5) above and that the treatment could no longer be said to amount to special treatment afforded to women in connection with pregnancy or childbirth so that an equal terms claim could be brought. As the Court of Appeal said at §76, “Whether or not the special treatment afforded to a woman is "in connection with pregnancy or childbirth" is a question of fact and degree to be determined in the usual by the trial judge or tribunal".

The facts giving rise to a potentially viable claim are obviously very unlikely to arise in practice. The maternity pay and leave terms would have to be substantially better than the generous statutory scheme for police officers described above.

Watch this space

Both sets of unsuccessful claimants in these appeals have sought permission to appeal to the Supreme Court of the United Kingdom. For now, employers (including police forces) can provide maternity leave with enhanced payments that are closer to full pay than the payments made for other kinds of parental leave without facing an equal terms or sex discrimination claim.

The Court has prepared a helpful short summary of the judgment: here. The full judgment is here

The hearing before the Court of Appeal was live streamed and can be viewed here

Dijen Basu QC and Jonathan Davies represented the Chief Constable of Leicestershire.