Ali v Capita Customer Management Ltd (Rev 2)

Statutory maternity leave is not predominantly childcare leave after the compulsory two-week period. Its purposes include protecting the mother’s health and recovery, the special relationship with the newborn child and breastfeeding, as well as childcare. Shared parental leave does not change that character.

A man taking shared parental leave cannot therefore compare himself under the Equality Act 2010 with a birth mother taking maternity leave. The exception for special treatment connected with pregnancy or childbirth is assessed as a question of fact and degree. The sex equality clause can incorporate a corresponding term, but the pregnancy and childbirth exception prevents it operating on maternity leave and pay. The mutual-exclusivity rule also prevents the complaint being reframed as indirect discrimination.

These conjoined appeals concerned whether paying shared parental leave at the statutory rate, while paying birth mothers enhanced maternity pay, constituted sex discrimination or breached the sex equality clause.

In Mr Ali’s case, the Employment Tribunal found direct discrimination. The Employment Appeal Tribunal overturned that decision in [2018] UKEAT 161. In Mr Hextall’s case, the Employment Tribunal dismissed the claims. The Employment Appeal Tribunal treated the claim as indirect discrimination, set aside the dismissal and remitted it in [2018] UKEAT 139.

The Court of Appeal considered the purposes of maternity leave, the correct comparator, the operation of the sex equality clause and whether the indirect discrimination claim could proceed.

The Court dismissed Mr Ali’s appeal, dismissed Mr Hextall’s appeal, allowed the Chief Constable’s cross-appeal, set aside the Employment Appeal Tribunal’s order and restored the Employment Tribunal’s dismissal of Mr Hextall’s claims.

1. Maternity leave and comparison. Statutory maternity leave is not, after the compulsory period, predominantly childcare leave. Its purposes include preparation for and recovery from pregnancy and childbirth, development of the special relationship between mother and child, breastfeeding and childcare. The Court relied on Hofmann v Barmer Ersatzkasse [1985] ICR 731, Betriu Montull v Instituto Nacional de la Seguridad Social (INSS) [2013] ICR 1323 and CD v ST [2014] IRLR 551. Shared parental leave gives families greater choice but does not alter the predominant purpose of statutory maternity leave.
2. For the purposes of direct discrimination under section 13 of the Equality Act 2010, section 23 requires no material difference between the claimant and comparator. A birth mother taking maternity leave is materially different from a man taking shared parental leave. The appropriate comparator for Mr Ali was a woman taking shared parental leave, who received the same statutory rate.
3. Section 13(6)(b) preserves special treatment afforded to women in connection with pregnancy or childbirth. It should not be interpreted narrowly or by importing a reasonable-necessity or proportionality test. Whether treatment falls within the provision is a question of fact and degree. Maternity leave and pay fell within it.
4. Equal terms. In applying section 66, the terms of a person’s work are those governing that person’s circumstances. Terms contingent on pregnancy, childbirth or breastfeeding were not terms of Mr Hextall’s work. Nevertheless, the sex equality clause could, in principle, incorporate a corresponding term adapted to his circumstances. Hayward v Cammell Laird Shipbuilders Ltd [1988] 1 AC 894 illustrated that the incorporated term need not be literally identical or co-extensive with the claim.
5. Schedule 7 paragraph 2 prevented the sex equality clause operating on terms affording special treatment to women in connection with pregnancy or childbirth. Section 70 therefore prevented the complaint being advanced as indirect discrimination. Section 71 did not assist because the direct discrimination claim had been dismissed and the proper comparator was unavailable.
6. Alternatively, the indirect discrimination claim failed. The pleaded PCP of paying statutory shared parental pay did not itself cause the alleged disadvantage; the complaint attacked the separate maternity entitlement. Birth mothers on maternity leave were also materially different and excluded from the comparison pool under section 23. Justification therefore did not arise. In any event, the special treatment of birth mothers would have been a proportionate means of achieving a legitimate aim.

• Court of Appeal (Civil Division) dismissed Mr Ali’s appeal, dismissed Mr Hextall’s appeal, allowed the Chief Constable’s cross-appeal and restored the Employment Tribunal’s dismissal of Mr Hextall’s claims.
• Employment Appeal Tribunal overturned the finding of direct discrimination in Mr Ali’s case and dismissed his claim under [2018] UKEAT 161. In Mr Hextall’s case, it set aside the dismissal of the indirect discrimination claim and remitted the matter for rehearing under [2018] UKEAT 139.
• Employment Tribunal found direct discrimination in Mr Ali’s case. It dismissed Mr Hextall’s direct and indirect discrimination claims.