Shared parental pay case: Supreme Court refuses permission to appeal

The cases in question were Ali v Capita and Hextall v Chief Constable of Leicestershire Police.

In May 2019, the Court of Appeal determined that in scenarios where enhanced shared parental pay was not aligned to match that of enhanced maternity pay, there was no sex discrimination taking place. This stance remains binding since the Supreme Court has refused permission to appeal this decision.

Capita provided its female employees with up to 39 weeks’ worth of maternity pay – the initial 14 weeks at full pay and the remaining 25 weeks at statutory maternity pay rate.

Mr. Ali respected that the first two weeks of maternity leave were different as the mother would need time off to recover after giving birth in this period, but argued that the remaining 12 weeks’ worth of full pay should not have been available to female employees only. He claimed that this was unlawful direct sex discrimination.

Leicester Police Force provided 18 weeks’ worth of maternity leave at full pay. They also offered a shared parental leave scheme to match statutory requirements. Mr. Hextall claimed that the employer’s policy put men at a disadvantage and was unlawful discrimination.

The Court of Appeal upheld the same response in both cases, and that was that there was no direct discrimination on a man taking shared parental leave for childcare reasons as this was not comparable to a mother who was on leave, who would require time to recover both mentally and physically after carrying and giving birth to, a child. They also maintained that there was nothing unusual about either of the company’s policies and rejected both claims.

The Supreme Court’s refusal of permission to appeal in relation to this means that employers can continue to enhance maternity pay without the requirement to enhance shared parental pay.