Following the Supreme Court’s refusal to permit an appeal in Chief Constable of Leicestershire v Hextall, the Court of Appeal’s earlier judgment remains binding. In a case which brings the paradoxes inherent in the UK’s  system of workplace parental rights into sharp focus, the Court held that it is not discriminatory to pay a man on shared parental leave (SPL) less than an enhanced rate of maternity pay paid to a woman on maternity leave (ML).

The Court of Appeal’s judgment was given in two joined cases. In Ali a policy provided enhanced maternity pay of up to 39 weeks, the first 14 weeks paid at full pay followed by 25 weeks of lower rate statutory maternity pay (SMP). The scheme in Hextall provided 18 weeks’ full pay followed by 39 weeks of SMP. In both cases, parents on SPL received statutory shared parental leave pay (SSPLP) only.

Although the employers’ policies were similar, the substantive claims differed: Ali was a direct discrimination claim and in Hextallindirect discrimination and equal pay were claimed, although only the latter was advanced. A claim cannot be brought on both grounds (s. 70, Equality Act 2010, ‘the Act’) and the indirect discrimination claim would have failed because the special treatment afforded to mothers is an exception to the equal treatment principle ( 122-124).

Direct Discrimination

The argument in Ali was that any leave taken by a mother beyond the two weeks of compulsory ML is a matter of choice relating to childcare arrangements within the family. Thus, mothers should not be incentivised to stay at home and a decision to take SPL should not carry a financial detriment.

The Court interpreted this as an ‘attack against the whole statutory scheme’ ( 116) under which special treatment is given to women on ML, the entire period of which ‘is for more than just facilitating childcare’ ( 41) but incorporates ‘other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner’ ( 72). It is to enable the woman to prepare and cope with the later stages of pregnancy, to recuperate from the pregnancy and childbirth, to develop the ‘special relationship between the mother and the newborn child’, to breastfeed, and to care for the child ( 66). SPL, by implication, is predominately intended for providing childcare. Men on SPL and women on ML are therefore not in comparable positions.

Equal Pay

In Hextall, the Court considered the application of the sex equality clause implied in all contracts of employment (s. 66, EA) which the claimant contended should entitle him to leave and pay at the same rates as a woman taking ML. The claim failed as the Act allows employers to make exceptions to the sex equality clause for women who are pregnant, have recently given birth or who are breastfeeding (schedule 7, paragraph 2, given effect by s. 80(7)).

In dismissing all the grounds of appeal, the Court ruled out the possibility of success for a direct, indirect or equal pay claim arising from a comparison between enhanced maternity pay and SSPLP on the grounds that Parliament has granted statutory protection for the special treatment related to pregnancy or childbirth which is only available to a birth mother.

Analysis

The judgment provides clarity in that employers who offer enhanced maternity schemes will not be expected to provide equal benefits for those taking SPL – a move that would no doubt have seen many equalizing down by defaulting to the statutory rules. However, as the Court’s reasoning reveals, assumptions about the different functions of ML and SPL are based on outdated notions of motherhood and fatherhood which do nothing to address the motherhood penalty by encouraging men to take time off to care for their children.

The Court had the difficult task of interpreting a complex web of statutory rules that has developed incrementally and which is founded on confused and contradictory thinking about the provision of childcare . Whilst seeking to preserve the important protections afforded to pregnancy and birth, the Court distinguished between physical and psychological preparation and recovery and the performative act of caregiving. It did not specify when the purpose of ML switched from being related to the health of the mother and child to the provision of childcare beyond indicating that this would be at least 14 weeks and potentially longer if the woman was breastfeeding. This point alone exemplifies everything that is wrong with the UK framework which assumes a delineation between the biological and social functions of parenting. By attaching the physical act of birth to the ‘special relationship’ between mother and child and decoupling this from the provision of care, the judgment at once affirms the link between biological incapacity and maternalism, overlooks the importance of a paternal bond and reduces caregiving to little more than presenteeism.

The current framework requires urgent amendment. Whilst a period of ML around the birth of a child is crucial, families can only exercise real choice if all leave is paid at a rate commensurate to the loss of earnings. Fathers should be entitled to a standalone period of extended paternity leave so that they too can bond with their child and adjust to their new lives together. SMP, SSPLP and Statutory Paternity Pay (currently £151.20 per week) should be at least equal to the living wage of £305.20. Only by valuing care can we challenge outdated ideas surrounding the gendering of paid work and unpaid care.