Is Lower Pay for Shared Parental Leave Discrimination? Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police

Abstract

The issue considered by the Court of Appeal in the joined appeals of Ali v Capita and Hextall v The Chief Constable of Leicestershire Police was whether it was unlawful sex discrimination for an employer to pay a man taking shared parental leave less than a woman taking maternity leave. The Court of Appeal found that a differentiation between maternity pay and shared parental pay was neither direct nor indirect sex discrimination. It was also not a breach of the sex equality clause in section 66 of the UK's Equality Act 2010. The Supreme Court has refused permission to appeal in Hextall. Ali has not been appealed. Therefore, the Court of Appeal judgment is likely to represent the state of the law on this issue for the foreseeable future. The case is also significant because it highlights the tension between special protections accorded to women in connection with pregnancy and maternity—in many cases hard-fought protections—and steps required to achieve gender equality by ensuring both genders have a realistic (adequately paid) opportunity to be equally involved in childcare.