Enhanced Maternity Pay – is it discriminatory?

30 May 2019

There are many employers who offer Enhanced Maternity Pay (“EMP”) to employees on Maternity Leave (“ML”) at a rate higher than the Statutory Maternity Pay (“SMP”) minimum entitlement. Employers are perfectly entitled to do so and there are many sensible justifications for it.

Shared Parental Leave (“SPL”) was introduced in 2015 with the aim of allowing parents to divide up the birth mother’s ML and SMP entitlement between the two parents. All employers are now legally obliged to provide SPL.

However, many employers who offer EMP do not enhance the corresponding Shared Parental Leave Pay (“SPLP”) rate equivalently. This has caused controversy surrounding the potential discriminatory nature of this behaviour. The parents taking SPL are statistically much more likely to be men, and so Tribunals have been faced with claims of sex discrimination, and also equal pay claims.

The Court of appeal has now provided some clarity on the issue, in a decision reached on two appeals heard together this month. The Court found that the predominant purpose of maternity leave is not childcare, but other matters which relate solely to the birth mother as a result of the pregnancy and her having given birth. These characteristics are therefore not shared by the husband or partner, and mean that no comparison can be drawn for the purposes of bringing a discrimination claim. This also rules out the possibility of bringing an equal pay claim due to an exception contained within the Equality Act 2010 relating to pregnancy.

Despite the current uptake of SPL being fairly small, it may well be likely to rise, and this decision provides much needed clarity on the point of it not being discriminatory to offer EMP without a corresponding approach being taken to SPLP.

If you require any advice, or have any concerns in relation to this issue, please do not hesitate to contact one of our employment law experts.

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