Many employers consider enhanced payments for employees taking maternity leave to bridge what can be significant gaps between Statutory Maternity Pay but is it legal to not trickle this down to male employees sharing child care responsibilities by taking shared parental leave?
The Court of Appeal has recently ruled that employers can enhance maternity pay, while only offering statutory shared parental pay for partners.
It was found that such different treatment did not amount to direct or indirect discrimination nor a breach of equal pay legislation.
In the cases of Ali v Capita Customer Management and Hextall v Chief Constable?of?Leicestershire?Police, the judgments stated that Mr Ali cannot be compared to a woman on maternity leave, as under the Equality Act 2010, maternity leave is provided to new mothers to assist in their?physical?and?psychological?recovery from pregnancy and childbirth. The court labelled a female employee on shared parental leave as the correct comparator, where there is no difference in pay.
Parliament has made a statutory exception which gives special treatment to a woman in connection with pregnancy or childbirth. That special treatment is, by definition, not available to anyone other than a birth mother, which means the partners of birth mothers are not discriminated against if they do not receive enhanced benefits for taking leave to care for their newborn.
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