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Failure to pay male employee enhanced shared parental pay was not sex discrimination

Eligible parents can take shared parental leave (SPL) of up to 50 weeks and shared parental pay (ShPP) of up to 37 weeks. 

The question of whether an employer that enhances maternity pay for women would discriminate directly or indirectly against men if it failed to enhance ShPP in a similar manner was uncertain.

In a recent case, an Employment Tribunal decided that a male employee had been directly discriminated against on the grounds of his sex. This was due to the employer’s refusal to provide equal entitlements to the male employee in relation to ShPP as those provided to mothers. The Employer appealed the Tribunals decision.

The Employment Appeal Tribunal upheld the appeal as it decided that the tribunal’s conclusion depended on an incorrect finding that the purpose of maternity leave and pay is to provide for the care of the child.

Legislation draws a clear distinction between the rights provided to pregnant workers and those who have given birth or are breastfeeding, and the rights given to parents of either sex to take leave to provide care for their child.

The Employment Appeal Tribunal therefore concluded that the male employee was not discriminated against on the grounds of sex.