Last year the case of Capita Customer Management Ltd v Ali and Another hit the headlines after the tribunal found that a father's employer had directly discriminated against him on the grounds of sex when they failed to pay him the enhanced rate of pay during shared parental leave that women were entitled to while on maternity leave. The case focused on the 12 weeks leave following compulsory maternity leave and a summary of the tribunal decision is here.

However, many employers who have enhanced maternity pay but have not enhanced shared parental pay will be relieved to hear that this decision has now been overturned by the EAT. The EAT considered that the tribunal had misunderstood the primary purpose of maternity leave and pay during the relevant period. The primary purpose was not to care for the child but to support the health and wellbeing of the mother. A father taking shared parental leave could not, therefore, compare himself to a woman on maternity leave as he was not recovering from childbirth. The EAT said the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.

The decision was welcomed by work-life balance charity Working Families who intervened in the case and described it as an “important safeguard for the special employment protection needed for pregnant women and new mothers”.

However, this may not be the end of the story as the EAT did acknowledge that there maybe a circumstance where a father could compare himself with a mother on later maternity leave. For example, this could happen after 26 weeks of maternity leave had elapsed and the main purpose of leave arguably shifts from recovery of the mother to the care of the child. In this case, the facts did not allow for such a comparison to be made but there is potential for future litigation on this issue.