A nail in the coffin of shared parental leave: What does Ali v Capita mean for shared parenting?

Last week the Court of Appeal gave judgment in Ali v Capita Customer Management.  It held that employers are not discriminating by offering maternity pay at a higher rate to shared parental pay.  This is a poor outcome for fathers.  But is it really good news for mothers?


The claims in Ali v Capita and Hextall v Leicestershire Police were brought by men eligible to take shared parental leave.  Mr Ali and Mr Hextall challenged the pay their employers offered during shared parental leave.  Both their employers paid maternity pay at an enhanced rate for several weeks.  By contrast, pay for shared parental leave was only offered at the lower, statutory rate.


The Court of Appeal held that the purpose of the two types of leave is not the same.  Maternity leave offers protection to mothers following pregnancy and childbirth.  Shared parental leave, on the other hand, is to care for a child.  This means that the circumstances of birth mothers and men on SPL are not the same and their treatment cannot be compared.  Consequently, men who are offered a lower rate of pay for SPL cannot claim discrimination or a breach of the right to equal pay.


A pyrrhic victory?

This appears to be a positive outcome for women eligible for maternity leave, preserving their right to special protection.  But does it reflect today’s parenting models and what is the impact of the decision on shared parental leave?


Mr Ali argued that social policy has developed since the 1980s when the purpose of maternity leave was first identified.  Since then the UK and the EU have introduced parental leave with the aim of encouraging more equal sharing of family responsibilities between men and women.  One of the goals of shared parental leave is to “reduce the gender penalty resulting from women taking longer periods of time out of the workplace”.


Mr Ali argued that maternity rights must be interpreted in the light of these aims.  The court should not uphold a financial incentive for the birth mother to stay at home while the father remains the primary breadwinner.


Shared parental leave is unpopular

While no-one can deny the importance of protecting birth mothers in the post-birth period, this decision does not advance equal division of parental responsibility.  Shared parenting can only be achieved by fathers using their right to shared parental leave.  But take up has been low since its introduction in the UK in 2015.  A TUC report published in April revealed that take up was as low as 1% of eligible parents in 2018. 


Pay up to get take-up

The EU Directive on parental leave cites levels of income during time out as being one factor that influences take up of SPL by parents and especially fathers.  Industry experience suggests the rate of pay offered may well be the main factor.  The popularity of shared parental leave doubled at UBS when it altered its policy to offer 26 weeks of leave at full pay.  Elsewhere, shared parental leave is unlikely to become a viable option for parents until a better rate of pay is offered. 


SPL: the problem rather than the solution

Women continue to be disadvantaged in the workplace. The gender pay gap persists and progress towards increasing the number of women on boards has stagnated.  For women to achieve equality at work, men need to take a greater share of parenting responsibility.  Shared parental leave should be the solution.  Instead, the low rate of pay offered has made it the problem.