In May 2018, the Employment Appeal Tribunal (EAT) reported that international professional services company, Capita, paid its female employees enhanced maternity pay – however the same was not offered on the rates of pay for paternity or shared parental leave (SPL). The EAT held that this was not discriminatory, however the case was subsequently sent to the Court of Appeal for further clarification.

Many employers who offer enhanced maternity pay rates often don’t provide enhanced SPL or paternity leave rates. This has caused a debate as to whether or not the disparity could amount to discriminatory behaviour, due to the fact that parents taking SPL are statistically more likely to be male.

The Court of Appeal has now confirmed that it is not discriminatory for employers to enhance maternity pay rates while only offering normal statutory payments to workers on paternity/SPL. It has been ruled that the predominant purpose of maternity leave – even beyond the statutory two weeks – was “not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth, and not shared by the husband or partner”.

The court also ruled that there was not an equal pay case to be made as the law allows employers to make exceptions for women who are pregnant, have recently given birth, or are breastfeeding.

If the court had decided that the action was discriminatory, the outcome would likely be that companies would withdraw their enhanced maternity pay rates as opposed to increase rates for those on paternity/SPL.

Therefore, it is ultimately for employers to decide whether or not to enhance contractual pay to employees on paternity/SPL where enhanced maternity pay is already applied. At present, there is no legal obligation requiring employers to do so.

For further information regarding enhanced maternity pay, please contact Charlie Wood, Associate in our Employment Law and HR team on 0161 475 7673 or email [email protected].