Does the hand that rocks the cradle get the pay?

One of the perils of being an employment lawyer is sometimes you spend time thinking about a conundrum caused by changes to the law before concluding it probably ultimately does not matter. The rights a man might have to any enhanced pay during shared parental leave is probably another one of those situations. If an enhanced maternity pay scheme provides for full or enhanced pay for, say, the first 26 weeks of maternity leave, what rights does a man who takes shared parental leave have to the same benefit when his time off is during that period?

The father could argue he has been directly discriminated against on the basis the mother would have received the enhancement. But I am not so sure. Is the correct comparator in this situation a woman on maternity leave, or a woman on shared parental leave? If a man on shared parental leave cannot compare himself to a woman on maternity leave his direct discrimination claim stops there. It is clear that there is nothing in the Equality Act to prevent a comparison being made between a man on shared parental leave and a woman on maternity leave; as the EAT said in de Belinwe see no conceptual objection to a man bringing a sex discrimination claim by reference to the more favourable treatment of a colleague on account of her being pregnant or on maternity leave. Those are, as the Claimant says, gender-specific criteria, and discrimination by reference to them is, other things being equal, sex discrimination“. It is arguable, however, that the more appropriate comparator is a woman on shared parental leave. But as the ECJ in Roca Alvarez commented, the positions of male and female parents of a young child are comparable with regard to their possible need to reduce their daily working time to look after the child, which lends support to the argument that there is no reason why a woman on maternity leave could not be an appropriate comparator.

Assuming that comparison can be made, section 13(6) of the Equality Act comes in to play. It specifically states where it is a man complaining of discrimination “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.“.
The scope of that special treatment is, however, restricted as the EAT in de Belin and the ECJ in Roca Alvarez made clear. Shared parental leave allows either parent to take time off to care for the baby once the two week compulsory maternity period is at an end that suggests a distinction between maternity leave (time off to recover from the physical trauma of childbirth and to breast feed) and parental leave (time off to care for the child); at some point after the birth, maternity leave must be more akin to Roca Alvarez/ Makin parental leave. Arguably therefore the special treatment exception cannot allow an employer to treat women on maternity leave more favourably than, for example, a father who takes time off to be the primary childcarer when his child is 3 months’ old. There may be arguments to be had about the point at which ‘special treatment’ is no longer necessary, but I suspect any judicial attempt to define the exact point as being anything other than the 2 weeks immediately after the birth might be as laughable or as concerning as the old cases on a maternity comparator.

Ultimately, however, the reason all this may end up being legally interesting (if you’re a geek) but largely irrelevant is that presumably the man’s claim succeeds in any event as one of indirect discrimination. If the enhancement is paid to anyone on “maternity leave” (as most policies describe it) this is a provision, criterion or practice for the purposes of Section 19 of the Equality Act with which a man cannot comply. A man is clearly put at a disadvantage as he does not receive the enhanced maternity pay. I do not consider that an employer could sustain a justification for the different treatment for the same reason that the special treatment argument fails; at some point after the birth, maternity leave is actually more akin to Roca Alvarez/ Makin parental leave and there is no reason for treating women on maternity leave more favourably than men on shared parental leave which does not rely on the very gender stereotypes regarding care of children which shared parental leave is intended to work towards eradicating.

Comments and thoughts welcome. I have not seen anything where anyone nails their colours to the mast on the direct/indirect point.  But query whether that’s because it doesn’t matter.