EAT (Choudhury J, Ms K Bilgan and Miss S Wilson CBE), UKEAT/0133/20/LA, 31 March 2021

Here the EAT rejected a claim that an employer had discriminated unlawfully on grounds of sex by permitting the claimant, the father of a recently born child, the equivalent of statutory maternity pay only if he were to take 37 weeks’ Shared Parental Leave (as was his statutory entitlement) whereas a woman who took maternity leave (or who took adoptive leave) would have been entitled to six weeks’ payment at 90% of average weekly earnings followed by 12 weeks at half pay plus statutory maternity pay and 21 weeks’ statutory maternity pay.

The claimant sought to compare himself both with a female worker on maternity leave and in receipt of maternity pay and a female worker on adoption leave in receipt of adoption pay. The followed the Court of Appeal in Capita Customer Management Ltd v Ali [2019] EWCA Civ 900, [2020] ICR 87 in rejecting the first comparator on the basis that there was a material difference between her material circumstances and those of the claimant. It also ruled that a worker on adoptive leave was in materially different circumstances from the claimant because adoptive leave was in part  compulsory, could begin before placement, was an immediate entitlement on placement and could only be taken with the partner’s agreement to give up adoptive leave, and that shared parental leave had to be taken within fifty-two weeks of placement and within the period and could be “dipped in and out” of. It ruled that the appropriate comparator was a female worker who had applied for shared parental leave where the partner had taken the statutory adoption leave and who would have been paid at the same rate as the claimant.

On appeal the claimant sought to distinguish the decision in Capita Customer on the basis that it was concerned with the reasons for maternity leave whereas the predominant purpose of adoptive leave is childcare. The EAT did not accept this, stating at §38 that such leave was also concerned to facilitate “the forming of a parental bond, becoming a family, and the taking of steps to prepare and maintain an appropriate and safe environment for the adopted child” and at §41 rejecting the proposition that a parent taking shared parental leave was in a materially similar position to one taking adoptive leave. At §46 the EAT accepted that the tribunal had erred in referring to a “compulsory” period of adoptive leave, which does not exist but it concluded at §55 that the tribunal had been entitled to rely on the other factors in deciding that the claimant was not similarly positioned to an employee on adoptive leave.

Claimant: Anthony Korn, instructed by Berry Smith LLP

Respondent: Jonathan Walters, instructed by Powys County Council Legal represented the Claimant and Jonathan Walters the respondent