Capita Customer Management Ltd v. Ali (Sex Discrimination), Court of Appeal - United Kingdom Employment Appeal Tribunal, April 11, 2018, [2018] UKEAT 0161_17_1104

Resolution Date:April 11, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Capita Customer Management Ltd v. Ali (Sex Discrimination)
 
FREE EXCERPT

Appeal No. UKEAT/0161/17/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 20 & 21 December 2017

Judgment handed down on 11 April 2018

Before

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

CAPITA CUSTOMER MANAGEMENT LIMITED APPELLANT

(1) MR M ALI

(2) WORKING FAMILIES (INTERVENOR) RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

|For the Appellant |MR ANDREW BURNS |

| |(One of Her Majesty’s Counsel) |

| |and |

| |MS LUCINDA HARRIS |

| |(of Counsel) |

| |Instructed by: |

| |Irwin Mitchell LLP Solicitors |

| |2 Wellington Place |

| |Leeds |

| |LS1 4BZ |

| | |

|For the Respondent |MR DESHPAL PANESAR |

| |(of Counsel) |

| |Direct Public Access |

|For the Intervenor |Written submissions |

| |MR CHRISTOPHER MILSOM |

| |(of Counsel) |

SUMMARY

SEX DISCRIMINATION - Direct

SEX DISCRIMINATION - Indirect

VICTIMISATION DISCRIMINATION - Detriment

A father who wished to take shared parental leave so that his wife could go back to work claimed direct sex discrimination in not being entitled to pay at the higher maternity pay rate for 12 weeks after the 2 weeks compulsory maternity leave but only that paid for shared parental leave.

The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the Claimant father were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken. Shared parental leave is given on the same terms for men and women. Hofmann v Barmer Ersatzkasse [1985] ICR 731 and Betriu Montull v Instituto NSS [2013] ICR 1323 considered. Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010 section13(6)(b). Eversheds v Legal Services De Belin [2011] ICR 1137 considered.

Appeal from finding of direct sex discrimination allowed. Finding set aside.

Appeal from three findings of victimisation under Equality Act 2010 section 27 dismissed. Decision in respect of one finding of victimisation was not Meek-compliant. Appeal allowed in respect of this claim of victimisation allowed. Claim of victimisation remitted for hearing before the same Employment Tribunal, if practicable.

THE HONOURABLE MRS JUSTICE SLADE DBE

  1. This appeal is linked to that of Mr A Hextall v The Chief Constable of Leicestershire Police. Both appeals raise the issue of whether it is sex discrimination giving rise to a claim, for an employer not to pay a man who takes shared parental leave following the birth of his child, at the same rate as women on maternity leave. Two different Employment Tribunals hearing the claims by the different Claimants reached different conclusions. Mr Ali succeeded in his claim. The claim by Mr Hextall was dismissed.

  2. Capita Customer Management Limited (“the Respondent”) appeal from the decision of Employment Judge Rogerson and members (“the ET”) who by a Judgment sent to the parties on 17 March 2017 (“the Judgment”) upheld the claim by Mr Ali (“the Claimant”) of direct sex discrimination for not being entitled to pay at the same rate as that paid to a woman on maternity leave for twelve weeks after the expiry of his two weeks entitlement to paternity leave and paternity pay.

  3. At first reading the claim appears, as characterised by Employment Judge Camp in Hextall v The Chief Constable of Leicestershire Police, “bold and ingenious”. The arguments advanced by Mr Panesar, counsel appearing for the Claimant in the Employment Appeal Tribunal (“EAT”) seek to defend the conclusion reached by the ET by a careful analysis and application of the statutory provisions underpinning the respective rights of parents to leave and pay following the birth of their child. The position of Mr Burns QC and Ms Harris for the Appellant Respondent characterises the issue on appeal more simply. Counsel for the Respondent set the tone in the introduction to their skeleton argument:

    “1. This Appeal raises two issues. The first is straightforward: it is not sex discrimination for an employer to make different payments for maternity leave and for shared parental leave. The two types of leave are not comparable. …”

    The second issue on this appeal is: the challenge to the finding by the ET that the Respondent had victimised the Claimant for having asked for and made a claim in respect of the same rate of pay as a woman on maternity leave.

  4. Mr Milsom has made written submissions on behalf of Working Families, the Intervenor, to be taken into account in this appeal and that in Hextall. The submissions provide a useful guide to the provisions relating to maternity and parental protections. The Intervenor does not seek to adopt the position of any party. The Intervenor takes the position that the EAT should not reach a conclusion whose unintended consequences lead to a diminution of the rights of the mother or of parents. The written submissions on behalf of the Intervenor set out their position:

    “6. …

    i. The framing of any direct discrimination complaint must not lead to the undermining of the unique position of the biological mother or give rise to any risk of “levelling down” protection; Roca Alvarez [Roca Alvarez v Sesa Start Espana ETT SA [2011] CMLR 28];

    iii. Shared parental leave enables families choices about who cares [for] the child during the first year of life and had the stated purpose of encouraging fathers to take a more active and engaged role in bringing up their children. We suggest that after a period of 26 weeks (or ordinary maternity leave) the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave;”

  5. The appeal with related facts, submissions and law from the finding of direct sex discrimination will be considered before those relevant to the appeal from the findings of victimisation.

    Appeal from Finding of Direct Sex Discrimination

    Outline Facts

  6. The ET set out the Respondent’s maternity, paternity and adoption leave policies which applied to transferring Telefonica employees. Telefonica policies applied to the Claimant. The ET held:

    “4. The ‘entitlement’ to pay for maternity and parental leave was not a contractual term but was contained in separate Telefonica policies that transferred with the transferring employees.

    Female Telefonica transferring employees were entitled to maternity pay in accordance with the Telefonica maternity policy dated December 2011. The policy provides three options for maternity pay of up to 39 weeks. If an employee had 26 weeks service she was entitled to receive the most favourable of 3 options from:

    “1. 14 weeks company maternity pay followed by 25 weeks lower rate statutory maternity pay.

  7. 6 weeks higher rate statutory maternity pay followed by eight weeks company maternity weeks and then 25 weeks lower rate statutory maternity pay.

  8. 6 weeks higher rate statutory maternity pay followed by 33 weeks lower rate statutory maternity pay.”

    Clearly the most favourable option was 14 weeks basic pay followed by 25 weeks statutory maternity pay for the balance of the leave.

    4.1. The Claimant as a father and male employee was entitled to paternity leave and pay under the Telefonica policy. That policy also applied to same sex couples providing you were the partner of the mother and would “share responsibilities for bringing up your new baby”. Page 47 of the policy deals with paternity leave and provides up to 2 weeks paid Ordinary Paternity Leave (OPL) and up to a further 28 weeks Additional Paternity Leave (APL), which ‘may or may not be paid’.

    “Ordinary Paternity Leave (OPL) is paid time out to enable you to spend time with your newly born baby (or newly adopted child). Ordinary paternity leave is up to two weeks leave. The earliest you can choose to start your paternity leave is immediately your baby is born or within eight weeks after the birth. The payment provisions for the leave are that you will be paid as usual during your ordinary paternity leave”.

    The Claimant was therefore entitled to, and was paid the benefit of his full pay for two weeks after the birth of his daughter to spend time with his “newly born baby”. A parent adopting a child would also get that leave and pay.

    4.2. For parents of either sex adopting a child the statutory provisions applied and provided for Statutory Adoption Leave (‘SAL’) of up to 52 weeks and an entitlement to 39 weeks of Statutory Adoption Pay (SAP). SAL comprises of 26 weeks Ordinary Adoption Leave (OAL) which can start from the date of the child’s placement or from a fixed date up to 14 days before the expected date of placement, followed immediately by 26 weeks of Additional Adoption Leave (AAL).

    …”

  9. The ET set out the background facts relating to the sex discrimination claim.

    “5. The background facts to the sex discrimination complaint were not disputed and are as follows:-

    5.1. The Claimant is a current employee of the Respondent working now as a Business Customer Adviser (BCA) in the BE Team based in Arlington Leeds.

    5.2. In July 2013, his employment had transferred to the Respondent as part of a TUPE transfer from Telefonica and he had accrued 12 years service by the time of these complaints.

    5.3. In August 2015, the Claimant was asked to move to the Business Retentions Team (BRT) from the BE team because of his good past performance and experience. This role gave the Claimant greater autonomy, authority and entitled him to participate in a better bonus scheme.

    5.4. The Claimant’s daughter was born on 5 February 2016. She was born 2 weeks prematurely but the Claimant was able to take his 2 weeks paternity leave immediately following her birth (from 8-19 February 2016) for which he was paid.

    5.5. During that paternity leave, he informed his manager, team leader Lora [Laura] Tummons that his wife had been diagnosed with post natal depression.

    5.6. Fortunately, the Claimant had booked annual leave which was to commence on the due date of his baby and he was able to take a further week’s paid leave to care for his wife and daughter.

    5.7. On 7 March 2016, he returned to work. He was concerned about the health and well being of his wife and baby and wanted to take time off to care for his daughter. This was in circumstances where his wife was suffering with post natal depression and had been medically advised to return to work to assist her recovery. The Claimant asked Lora [Lorna] Tummons about this and she sought advice from the Senior Management Team.

    5.9. On 9 March 2016, a meeting took place between the Claimant, Debbie Oddie and Laura Tummons at which the Claimant was told he was eligible for shared parental leave (SPL) under the Capita policy but would only be entitled to statutory pay.

    5.10. The Claimant discussed this with his female Telefonica transferred colleagues at work and they confirmed that they were entitled to full pay for 14 weeks maternity leave. He believed he should get the same entitlement in his particular circumstances under the Telefonica policy.”

    Statutory Provisions

    Equality Act 2010 (“EqA”)

    Section 4:

    “4. The following characteristics are protected characteristics -

    …; pregnancy and maternity; …; sex; …”

    Section 13:

    “13. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

    (6) If the protected characteristic is sex -

    (b) in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.”

    Section 23:

    “23. (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”

    Section 39:

    “39. …

    (2) An employer (A) must not discriminate against an employee of A’s (B) -

    (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

    (d) by subjecting B to any other detriment.”

    Employment Rights Act 1996 (“ERA”)

    Maternity Leave

    Section 71:

    “71. (1) An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.

    (2) An ordinary maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

    (3) Regulations under subsection (2) -

    (a) shall secure that, where an employee has a right to leave under this section, she is entitled to an ordinary maternity leave period of at least 26 weeks;

  10. (1) An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave period.

    (2) A compulsory maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

    (3) Regulations under subsection (2) shall secure -

    (a) that no compulsory leave period is less than two weeks, and

    (b) that every compulsory maternity leave period falls within an ordinary maternity leave period.

  11. (1) An employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period.

    (2) An additional maternity leave period is a period calculated in accordance with regulations made by the Secretary of State.

    (3) Regulations under subsection (2) -

    (a) may allow an employee to bring forward the date on which an additional maternity leave period ends, subject to prescribed restrictions and subject to satisfying prescribed conditions;

    (3A) Provision under subsection (3)(a) is to secure that an employee may bring forward the date on which an additional maternity leave period ends only if the employee or another person has taken, or is taking, prescribed steps as regards leave under section 75E or statutory shared parental pay in respect of the child.”

    Adoption Leave

    Section 75A:

    “75A. (1) An employee who satisfies prescribed conditions may be absent from work at any time during an ordinary adoption leave period.

    (2) An ordinary adoption leave period is a period calculated in accordance with regulations made by the Secretary of State.”

    Section 75B:

    “75B. (1) An employee who satisfies prescribed conditions may be absent from work at any time during an additional adoption leave period.

    (2) An additional adoption leave period is a period calculated in accordance with regulations made by the Secretary of State.”

    Shared Parental Leave

    Section 75E:

    “75E. (1) The Secretary of State may make regulations entitling an employee who satisfies specified conditions -

    (b) as to being, or expecting to be, the mother of a child,

    (c) as to caring or intending to care, with another person (“P”), for the child,

    (d) as to entitlement to maternity leave,

    (2) Regulations under subsection (1) may provide that the employee’s entitlement is subject to the satisfaction by P of specified conditions -

    (c) as to caring or intending to care, with the employee, for the child, …

    (4) The Secretary of State may make regulations entitling an employee who satisfies specified conditions -

    (b) as to relationship with a child or expected child or with the child’s mother,

    (c) as to caring or intending to care, with the child’s mother, for the child,

    …”

    Section 75F:

    “75F. (1) Regulations under section 75E are to include provision for determining -

    (a) the amount of leave under section 75E(1) or (4) to which an employee is entitled in respect of a child;

    (b) when leave under section 75E(1) or (4) may be taken.

    (2) Provision under subsection (1)(a) is to secure that the amount of leave to which an employee is entitled in respect of a child does not exceed -

    (a) in a case where the child’s mother became entitled to maternity leave, the relevant amount of time reduced by -

    (i) where her maternity leave ends without her ordinary or additional maternity leave period having been curtailed by virtue of section 71(3)(ba) or 73(3)(a), the amount of maternity leave taken by the child’s mother, …

    (4) Provision under subsection (1)(a) is to secure that the amount of leave that an employee is entitled to take in respect of a child takes into account -

    (a) in a case where another person is entitled to leave under section 75E in respect of the child, the amount of such leave taken by the other person;

    (b) in a case where another person is entitled to statutory shared parental pay in respect of the child but not leave under section 75E, the number of weeks in respect of which such pay is payable to the other person.”

    Section 75G:

    “75G. (1) The Secretary of State may make regulations entitling an employee who satisfies specified conditions -

    (c) as to caring or intending to care, with another person (“P”), for the child,

    …”

    Paternity Leave

    Section 80A:

    “80A. Entitlement to paternity leave: birth

    (1) The Secretary of State shall make regulations entitling an employee who satisfies specified conditions -

    to be absent from work on leave under this section for the purpose of caring for the child or supporting the mother.

    (2) The regulations shall include provision for determining -

    (a) the extent of an employee’s entitlement to leave under this section in respect of a child;

    (b) when leave under this section may be taken.

    (3) Provision under subsection (2)(a) shall secure that where an employee is entitled to leave under this section in respect of a child he is entitled to at least two weeks’ leave.”

    Social Security Contributions and Benefits Act 1992 (“SSCBA”)

    Section 166:

    “166. (1) There shall be two rates of statutory maternity pay, in this Act referred to as “the higher rate” and “the lower rate”.

    (2) The higher rate is a weekly rate equivalent to nine-tenths of a woman’s normal weekly earnings for the period of 8 weeks immediately preceding the 14th week before the expected week of confinement or the weekly rate prescribed under subsection (3) below, whichever is the higher.

    (3) The lower rate is such weekly rate as may be prescribed.

    (4) Subject to the following provisions of this section, statutory maternity pay shall be payable at the higher rate to a woman who for a continuous period of at least 2 years ending with the week immediately preceding the 14th week before the expected week of confinement has been an employee in employed earner’s employment of any person liable to pay it to her, and shall be so paid by any such person in respect of the first 6 weeks in respect of which it is payable.

    (8) If a woman is entitled to statutory maternity pay at the higher rate, she shall be entitled to it at the lower rate in respect of the portion of the maternity pay period after the end of the 6 week period mentioned in subsection (4) above.”

    Regulations

    Maternity Leave

    Maternity and Parental Leave Regulations 1999 SI 1999 No 3312 (“MAPL”)

    Regulation 7:

    “7. (1) Subject to paragraphs (2) and (5), an employee’s ordinary maternity leave period continues for the period of eighteen weeks from its commencement, or until the end of the compulsory maternity leave period provided for in regulation 8 if later.”

    Regulation 8:

    “8. The prohibition in section 72 of the 1996 Act, against permitting an employee who satisfies prescribed conditions to work during a particular period (referred to as a “compulsory maternity leave period”), applies -

    (a) in relation to an employee who is entitled to ordinary maternity leave, and

    (b) in respect of the period of two weeks which commences with the day on which childbirth occurs.”

    Paternity and Adoption Leave Regulations 2002 SI 2002 No 2788

    Regulation 4:

    “4. (1) An employee is entitled to be absent from work for the purpose of caring for a child or supporting the child’s mother if he -

    (a) satisfies the conditions specified in paragraph (2), and

    (b) has complied with the notice requirements in regulation 6 and, where applicable the evidential requirements in that regulation.”

    Regulation 5:

    “5. (1) An employee may choose to take either one week’s leave or two consecutive weeks’ leave in respect of a child under regulation 4.

    (3) Subject to paragraph (2) and, where applicable, paragraph (4), an employee may choose to begin his period on leave on -

    (a) the date on which the child is born;

    …”

    Regulation 15:

    “15. (1) An employee is entitled to ordinary adoption leave in respect of a child if he -

    (a) satisfies the conditions specified in paragraph (2), …

    (2) The conditions referred to in paragraph (1) are that the employee -

    (a) is the child’s adopter; …”

    Regulation 18:

    “18. (1) Subject to regulations 22 and 24, an employee’s ordinary adoption leave period is a period of 26 weeks.”

    Statutory Maternity Pay (General) Regulations 1986 SI 1986 No 1960

    Regulation 2:

    “2. …

    (2) The maternity pay period shall be a period of 39 consecutive weeks.”

    Regulation 6:

    “6. The rate of statutory maternity pay prescribed under section 166(1)(b) of the Contributions and Benefits Act is a weekly rate of £140.98 [£138.18].”

    Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 SI 2002 No 2822

    “6. (1) Subject to paragraph (2) and regulation 8, a person entitled to statutory paternity pay (birth) may choose the statutory paternity pay period to begin on -

    (a) the date on which the child is born or, where he is at work on that day, the following day;

  12. (1) Subject to paragraph (2) and regulation 14, a person entitled to statutory paternity pay (adoption) may choose the statutory pay period to begin on -

    (a) the date on which the child is placed with the adopter …”

    Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002 SI 2002 No 2818

    The Regulation as amended from time to time specifies the statutory paternity and adoption leave.

    Shared Parental Leave and Pay

    Children and Families Act 2014

    The right to parental leave and pay derive purely from domestic law

    Shared Parental Leave Regulations 2014 SI 2014 No 3050 (“SPL Regulations”)

    Shared Parental Leave (“SPL”)

    M is the mother P is the partner C is the child

    A is the adopter AP is the partner of the adopter

    Regulation 4:

    “4. (1) M is entitled to be absent from work to take shared parental leave in accordance with Chapter 2 to care for C if she satisfies the conditions specified in paragraph (2) and P satisfies the conditions specified in paragraph (3).

    (2) The conditions are that -

    (a) M satisfies the continuity of employment test (see regulation 35);

    (b) M has, at the date of C’s birth, the main responsibility for the care of C (apart from the responsibility of P);

    (c) M is entitled to statutory maternity leave in respect of C;

    (d) M has ended any entitlement to statutory maternity leave by curtailing that leave under section 71(3)(ba) or 73(3)(a) of the 1996 Act (and that leave remains curtailed) or, where M has not curtailed in that way, M has returned to work before the end of her statutory maternity leave;

    (e) M has complied with regulation 8 (notice to employer of entitlement to shared parental leave);

    (f) M has complied with regulation 10(3) to (5) (evidence for employer); and

    (g) M has given a period of leave notice in accordance with regulation 12.

    (3) The conditions are that -

    (a) P satisfies the employment and earnings test (see regulation 36); and

    (b) P has, at the date of C’s birth, the main responsibility for the care of C (apart from the responsibility of M).

    (4) Entitlement under paragraph (1) is not affected by the number of children born or expected as a result of the same pregnancy.”

    Regulation 5:

    “5. (1) P is entitled to be absent from work to take shared parental leave in accordance with Chapter 2 to care for C if P satisfies the conditions specified in paragraph (2) and M satisfies the conditions specified in paragraph (3).

    (2) The conditions are that -

    (a) P satisfies the continuity of employment test (see regulation 35);

    (b) P has, at the date of C’s birth, the main responsibility for the care of C (apart from the responsibility of M);

    (c) P has complied with regulation 9 (notice to employer of entitlement to shared parental leave);

    (d) P has complied with regulation 10(3) to (5) (evidence for employer); and

    (e) P has given a period of leave notice in accordance with regulation 12.

    (3) The conditions are that -

    (a) M satisfies the employment and earnings test (see regulation 36);

    (b) M has, at the date of C’s birth, the main responsibility for the care of C (apart from the responsibility of P);

    (c) M is entitled to statutory maternity leave, statutory maternity pay, or maternity allowance in respect of C; and

    (d) where -

    (i) M is entitled to statutory maternity leave, she has ended any entitlement to statutory maternity leave by curtailing that leave under section 71(3)(ba) or section 73(3)(a) of the 1996 Act (and that leave remains curtailed) or, where M has not curtailed in that way, M has returned to work before the end of her statutory maternity leave,

    (ii) M is not entitled to statutory maternity leave but is entitled to statutory maternity pay, she has curtailed the maternity pay period under section 165(3A) of the 1992 Act (and that period remains curtailed), or

    (iii) M is not entitled to statutory maternity leave but is entitled to maternity allowance, she has curtailed the maternity allowance period under section 35(3A) of that Act (and that period remains curtailed).

    (4) Entitlement under paragraph (1) is not affected by the number of children born or expected as a result of the same pregnancy.”

    Regulation 6:

    “6. (1) Where M is entitled to statutory maternity leave, subject to paragraph (10), the total amount of shared parental leave available to M and P in relation to C is 52 weeks less -

    (a) where there is a leave curtailment date, the number of weeks of statutory maternity leave beginning with the first day of statutory maternity leave taken by M and ending with the leave curtailment date (irrespective of whether or not M returns to work before that date), or

    (b) where M’s statutory maternity leave ends without her curtailing that leave under section 71(3) or section 73(3) of the 1996 Act, the number of weeks of statutory maternity leave taken.”

    Regulation 20:

    “20. (1) A is entitled to be absent from work to take shared parental leave in accordance with Chapter 2 to care for C if A satisfies the conditions specified in paragraph (2) and AP satisfies the conditions specified in paragraph (3).”

    Regulation 22:

    “22. (1) Where A is entitled to statutory adoption leave, subject to paragraph (9), the total amount of shared parental leave available to A and AP in relation to C is 52 weeks less -

    (a) where there is a leave curtailment date, the number of weeks of statutory adoption leave beginning with the first day of statutory adoption leave taken by A and ending with the leave curtailment date (irrespective of whether or not A returns to work before that date), or

    (b) where A’s statutory adoption leave ends without A curtailing that leave under section 75A(2A) or section 75B(3) of the 1996 Act, either -

    (i) the number of weeks of statutory adoption leave taken; or

    (ii) 2 weeks,

    whichever is greater.

    (2) Where A is not entitled to statutory adoption leave, but is entitled to statutory adoption pay, subject to paragraph (10), the total amount of shared parental leave available to AP in relation to C is 52 weeks less -

    (a) where A returns to work without reducing A’s statutory adoption pay period under section 171ZN(2A) of the 1992 Act, the number of weeks of statutory adoption pay payable to A in respect of C before A returns to work, or

    (b) in any other case, the number of weeks of statutory adoption pay payable to A in respect of C up to the pay curtailment date.”

    Statutory Shared Parental Pay

    Statutory Shared Parental Pay (General) Regulations 2014 SI 2014 No 3051

    Regulation 4:

    “4. (1) M is entitled to statutory shared parental pay (birth) if M satisfies the conditions specified in paragraph (2) and if P satisfies the conditions specified in paragraphs (3).

    (2) The conditions are that -

    (a) M satisfies the conditions as to continuity of employment and normal weekly earnings specified in regulation 30;

    (b) M has at the date of C’s birth the main responsibility for the care of C (apart from the responsibility of P);

    (c) M has complied with the requirements specified in regulation 6 (notification and evidential requirements of M);

    (d) M became entitled by reference to the birth or expected birth of C to statutory maternity pay in respect of C;

    (e) the maternity pay period that applies as a result of M’s entitlement to statutory maternity pay is, and continues to be, reduced under section 165(3A) of the 1992 Act;

    (f) it is M’s intention to care for C during each week in respect of which statutory shared parental pay (birth) is paid to her;

    (g) M is absent from work during each week in respect of which statutory shared parental pay (birth) is paid to her (except in the cases referred to in regulation 15 (entitlement to shared parental pay: absence from work)); and

    (h) where M is an employee (within the meaning of the Employment Rights Act 1996) M’s absence from work as an employee during each week that statutory shared parental pay (birth) is paid to her is absence on shared parental leave in respect of C;

    (3) The conditions referred to in paragraph (1) are that -

    (a) P has at the date of C’s birth, the main responsibility for the care of C (apart from the responsibility of M); and

    (b) P satisfies the conditions relating to employment and earnings in regulation 29 (conditions as to employment and earnings of claimant’s partner).”

    Regulation 5:

    “5. (1) P is entitled to statutory shared parental pay (birth) if P satisfies the conditions specified in paragraph (2) and M satisfies the conditions specified in paragraph (3).

    (2) The conditions specified in paragraph (1) are that -

    (a) P satisfies the conditions as to continuity of employment and normal weekly earnings specified in regulation 30;

    (b) P has at the date of C’s birth the main responsibility for the care of C (apart from the responsibility of M);

    (c) P has complied with the requirements specified in regulation 7 (notification and evidential requirements of P);

    (d) it is P’s intention to care for C during each week in respect of which statutory shared parental pay (birth) is paid to P;

    (e) P is absent from work during each week in respect of which statutory shared parental pay (birth) is paid to P (except in the cases referred to in regulation 15 (entitlement to statutory shared parental pay: absence from work)); and

    (f) where P is an employee (within the meaning of the Employment Rights Act 1996) P’s absence from work as an employee during each week that statutory shared parental pay (birth) is paid to P is absence on shared parental leave in respect of C.

    (3) The conditions specified in paragraph (1) are -

    (a) M has at the date of C’s birth the main responsibility for the care of C (apart from the responsibility of P);

    (b) M meets the conditions as to employment and earnings in regulation 29 (conditions as to employment and earnings of claimant’s partner);

    (c) M became entitled by reference to the birth, or expected birth, of C to statutory maternity pay or maternity allowance; and

    (d) the maternity pay period or the maternity allowance period which applies to M as a result of her entitlement to statutory maternity pay or maternity allowance is, and continues to be, reduced under sections 35(3A) or 165(3A) of the 1992 Act.”

    Regulation 17:

    “17. (1) A is entitled to statutory shared parental pay (adoption) if A satisfies the conditions specified in paragraph (2) and AP satisfies the conditions specified in paragraph (3).

    (2) The conditions referred to in paragraph (1) are that -

    (a) A satisfies the conditions as to continuity of employment and normal weekly earnings specified in regulation 31 (conditions as to claimant’s continuity of employment and normal weekly earnings);

    (b) A has at the date of C’s placement for adoption the main responsibility for the care of C (apart from the responsibility of AP);

    (c) A has complied with the requirements specified in regulation 19 (notification and evidential requirements);

    (d) A became entitled to statutory adoption pay by reference to the placement for adoption of C;

    (e) the adoption pay period that applies as a result of A’s entitlement to statutory adoption pay is, and continues to be, reduced under section 171ZN(2A) of the 1992 Act;

    (f) it is A’s intention to care for C during each week in respect of which statutory shared parental pay (adoption) is paid to A;

    (g) A is absent from work during each week in respect of which statutory shared parental pay is paid to A (except in the cases referred to in regulation 27 (entitlement to statutory shared parental pay (adoption): absence from work); and

    (h) where A is an employee (within the meaning of the Employment Rights Act 1996) A’s absence from work as an employee during each week that statutory shared parental pay is paid to A is absence on shared parental leave in respect of C.

    (3) The conditions referred to in paragraph (1) are that -

    (a) AP has at the date of C’s placement for adoption the main responsibility for the care of C (apart from the responsibility of A); and

    (b) AP satisfies the employment and earnings conditions in regulation 29 (conditions relating to employment and earnings of claimant’s partner).”

    Regulation 18:

    “18. (1) AP is entitled to statutory shared parental pay (adoption) if AP satisfies the conditions specified in paragraph (2) and A satisfies the conditions specified in paragraph (3).

    (2) The conditions specified in paragraph (1) are that -

    (a) AP satisfies the conditions as to continuity of employment and normal weekly earnings specified in regulation 31 (conditions as to continuity of employment and normal weekly earnings);

    (b) AP has at the date of C’s placement for adoption the main responsibility for the care of C (apart from the responsibility of A);

    (c) AP has complied with the requirements specified in regulation 20 (notification and evidential requirements);

    (d) it is AP’s intention to care for C during each week in respect of which statutory shared parental pay (adoption) is paid to AP;

    (e) AP is absent from work during each week in respect of which statutory shared parental pay (adoption) is paid to AP (except in the cases referred to in regulation 27 (entitlement to statutory shared parental pay: absence from work)); and

    (f) where AP is an employee (within the meaning of the Employment Rights Act 1996) AP’s absence from work as an employee during each week that statutory shared parental pay is paid to AP is absence on shared parental leave in respect of C.

    (3) The conditions specified in paragraph (1) are that -

    (a) A has at the date of C’s placement for adoption the main responsibility for the care of C (apart from any responsibility of AP);

    (b) A satisfies the employment and earnings conditions in regulation 29;

    (c) A became entitled to statutory adoption pay by reference to the placement for adoption of C; and

    (d) the adoption pay period that applies as a result A’s entitlement to statutory adoption pay is, and continues to be, reduced under section 171ZN(2A) of the 1992 Act.”

    Regulation 40:

    “40. (1) The weekly rate of payment of statutory shared parental pay is the smaller of the following two amounts -

    (a) £140.98 [£138.18];

    (b) 90% of the normal weekly earnings of the individual claiming statutory shared parental pay determined in accordance with section 171ZZ4(6) of the 1992 Act and regulation 32).”

    Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 SI 2014 No 3052 (“Pay Curtailment Regulations”)

    Regulation 5:

    “5. (1) M may bring forward the date on which her ordinary maternity leave period or additional maternity leave period ends by giving her employer a leave curtailment notice …”

    Regulation 6:

    “6. (1) A leave curtailment notice must be in writing and must state -

    (a) where M curtails her ordinary maternity leave period, the date on which M’s ordinary maternity leave period is to end;

    (b) where M curtails her additional maternity leave period, the date on which M’s statutory additional maternity leave period is to end.

    (2) The date specified in the leave curtailment notice must be -

    (a) at least one day after the end of the compulsory maternity leave period;

    (b) at least eight weeks after the date on which M gave the leave curtailment notice to her employer; and

    (c) where M curtails her additional maternity leave period, at least one week before the last day of M’s additional maternity leave period.

    (3) In paragraph (2) “the end of the compulsory maternity leave period” means whichever is the later of -

    (a) the last day of the compulsory maternity leave period provided for in regulations under section 72(2) of the 1996 Act; …”

    Regulation 7:

    “7. (1) Where M has brought forward the date on which her ordinary maternity leave period or additional maternity leave period ends in accordance with regulation 5, her statutory maternity leave period will end on the leave curtailment date.

    (2) In this regulation “statutory maternity leave period” means the period during which M is on statutory maternity leave.”

    Regulation 9:

    “9. (1) A may bring forward the date on which A’s ordinary adoption leave period or additional adoption leave period ends by giving A’s employer a leave curtailment notice and either -

    (a) a notice of entitlement; or

    (b) a declaration of consent and entitlement.”

    Regulation 11:

    “11. (1) Where A has brought forward the date on which A’s ordinary adoption leave period or additional adoption leave period ends in accordance with regulation 9, A’s statutory adoption leave period will end on the leave curtailment date.”

    European Directives

  13. ERA sections 66 to 75 and SSCBA and related Regulations are the relevant domestic law implementation of Council Directive 92/85/EEC (“Pregnant Workers Directive”). The Pregnant Workers Directive was introduced under Article 118a of the Treaty establishing the European Community as a health and safety measure.

    Pregnant Workers Directive

  14. Preamble:

    “Whereas the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding makes it necessary for them to be granted the right to maternity leave of at least 14 continuous weeks, allocated before and/or after confinement, and renders necessary the compulsory nature of maternity leave of at least two weeks, allocated before and/or after confinement.

    Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and/or entitlement to an adequate allowance.”

    Article 1:

    “Purpose

  15. The purpose of this Directive, which is the tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC, is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding.”

    Article 8:

    “Maternity Leave

  16. Member States shall take the necessary measures to ensure that workers within the meaning of Article 2 are entitled to a continuous period of maternity leave of at least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice.

  17. The maternity leave stipulated in paragraph 1 must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice.”

    Article 11:

    “Employment Rights

    In order to guarantee workers within the meaning of Article 2 the exercise of their health and safety protection rights as recognised in this Article, it shall be provided that:

  18. in the case referred to in Article 8, the following must be ensured:

    (b) maintenance of a payment to, and/or entitlement to an adequate allowance for, workers within the meaning of Article 2.

  19. the allowance referred to in point 2(b) shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down in national legislation.”

    Directive 2006/54/EC (“Recast Equal Treatment Directive”) replacing Directive 76/207/EC (“Equal Treatment Directive”)

    Article 28:

    “1. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.”

    The exception was implemented in EqA section 13(6)(b).

    Directive 96/34/EC (“Parental Leave Directive”)

    Article 1: This Directive puts into effect the revised Framework Agreement on parental leave concluded on 18 June 2009 by the European cross-industry social partner organisations

    ANNEX: Whereas in many Member States encouraging men to assume an equal share of family responsibilities has not led to sufficient results; therefore, more effective measures should be taken to encourage a more equal sharing of family responsibilities between men and women.

    Clause 2: This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partners.

    Domestic Law implementation by the Maternity and Parental Leave etc. Regulations 1999 as amended (“MAPL Regulations”)

  20. Employers must provide maternity, parental, adoption and shared parental leave and pay no less than the statutory requirements and may enlarge on those entitlements. The Telefonica policy on maternity leave and pay provides:

    “Maternity leave

    You’re entitled to up to 52 weeks’ maternity leave, regardless of how long you have worked for us.

    • The first 26 weeks of maternity leave is called Ordinary Maternity Leave (OML).

    • The remaining 26 weeks is called Additional Maternity Leave (AML).

    By law you must take at least two weeks’ maternity leave immediately following the birth of your baby. This is known as compulsory maternity leave.

    When it comes to starting your maternity leave, we’re a firm believer that mum knows best. The exact start date is up to you, as long as it’s after the beginning of the 11th week before the week in which your baby is due and no later than your expected week of childbirth.

    That said, for you and your baby’s health, your maternity leave will start automatically, if you’re off work due to a pregnancy related illness which occurs after the start of the 4th week before your expected week of childbirth.

    Your maternity leave may be a mixture of paid and unpaid leave, depending on the length of your employment and how much time you wish to take.

    Maternity pay

    Your maternity pay will start from the day you begin your maternity leave, or if your baby is born early, from the day your baby is born, if you’re eligible.

    If you have more than 26 weeks’ service by the beginning of the 14th week before your Expected Week of Childbirth (EWC) and you plan to come back to work there are three options for maternity pay.

    You’ll receive the most favourable of the following options:

    • 14 weeks’ Company Maternity Pay followed by 25 weeks’ Lower Rate Statutory Maternity Pay; or

    • 6 weeks’ Higher Rate Statutory Maternity Pay, followed by 8 weeks Company Maternity Pay and then 25 weeks’ Lower Rate Statutory Maternity Pay; or

    • 6 weeks’ Higher Rate Statutory Maternity Pay followed by 33 weeks’ Lower Rate Statutory Maternity Pay.

    If you don’t complete one full calendar month of employment after you come back from maternity leave (this is excluding holiday or time out) you’ll have to pay back any company maternity pay paid to you. You’ll not be required to pay back any statutory maternity pay.”

  21. The Telefonica policy on shared parental leave and pay provides:

    “Eligible parents will be able to share a maximum of 50 weeks leave and 39 weeks statutory pay for the purpose of caring for a child within the first year of the child’s life or in the year after the child is placed for adoption.

    SPL cannot be taken until after the birth/placing of the child and only applies to babies born or children placed on or after 5th April 2015.”

    The mother and the other parent must give the necessary statutory notices and declarations including notice to end any maternity leave, statutory maternity leave, or maternity allowance periods.

    The first stage of opting into SPL is to bring maternity or adoption leave to an end by giving a curtailment notice stating when maternity or adoption leave is to end. The notice must provide that maternity leave is to come to an end no sooner than the two weeks compulsory maternity leave period and no later than one week before the end of the additional maternity leave period.

  22. Shared parental pay was paid at £139.58 at the relevant time or 90% of average weekly earnings whichever is the lower.

    The Judgment of the ET

  23. The ET set out the claim by the Claimant:

    “2. Dealing with the sex discrimination complaints first. The Claimant complains that as a male employee he was entitled to only two weeks paid leave following the birth of his child in April 2016, whereas a female Telefonica transferred employee, would be entitled to 14 weeks pay following the birth of her child. The Claimant accepted there was a material difference in circumstances/justified special treatment of a hypothetical female employee for the first two weeks of that leave because that female, the mother, was required to take ‘compulsory maternity leave’ which is related to her biological/physiological condition and recovery following childbirth. For that 2 week period the comparator was in a position unique to women who have given birth. However in that 2 week period, he was also paid his full pay for taking parental leave, so was not less favourably treated in relation to his pay/leave. His complaint is that in the following 12 weeks, when he wanted to take leave with pay, in order to care for his baby daughter, (because his wife was suffering with postnatal depression) he was deterred from taking the leave. This was because he was told that as the father he would only receive statutory pay not full pay for that leave. He argued that after the 2 weeks compulsory leave either parent (mother/father) could care for their baby, depending on the choices made by the parents and their particular circumstances. The assumption made that as a man (the father) caring for his baby, he was not entitled to the same pay as a woman (the mother) performing that role, took away the choice he and his wife wanted to make as parents for their baby. It was directly discriminatory on the grounds of sex, and was not a valid assumption to make in 2016.”

  24. The ET held at paragraph 5.25:

    “5.25. … This was a genuine complaint by a father wanting equal treatment for the purpose of taking time off to care for his baby. …”

  25. The ET succinctly encapsulated the principal argument advanced on behalf of the Respondent at paragraph 5.35:

    “5.35. Dealing with the first argument made by Mr Wilson on behalf of the Respondent. He contends that Mr Ali cannot compare himself to a female transferred Telefonica employee entitled to the benefit of 14 weeks maternity pay, because unlike that hypothetical comparator, Mr Ali has not given birth. He cannot do so because he is a man. Only women can take maternity leave because only women can give birth.”

  26. In rejecting the argument advanced by the Respondent the ET held at paragraph 5.36:

    “5.36. Mr Ali is not comparing himself to a woman who has given birth and accepts for the 2 weeks immediately after birth he cannot and does not do so, because that time is specifically associated with recovery after childbirth, a condition unique to women. He does not suffer any less favourable treatment in that period because he also gets full pay. In the subsequent 12 week period he is denied the benefit of full pay, which would have been given to a hypothetical female transferred Telefonica employee, caring for her child.”

  27. The ET concluded at paragraph 5.37 that the Claimant could compare himself after the two weeks compulsory leave period with a hypothetical female comparator on maternity leave who had given birth as both would be taking leave to look after their baby.

  28. The ET then decided that it followed that the Claimant had suffered direct sex discrimination because he would not receive full pay during the twelve week period for which he wished to take leave to look after the baby as would be the entitlement of a woman.

  29. The ET then considered at paragraph 5.39 whether the exception for special treatment of women because of pregnancy or childbirth applied.

  30. The reasoning of the ET for rejecting the ‘special treatment’ exception is set out in paragraph 5.41:

    “5.41. It was not clear why any exclusivity should apply beyond the 2 weeks after the birth. In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”

  31. The ET applied the principles they had adopted to the facts. At paragraph 5.42 they held:

    “5.42. … The caring role he wanted to perform was not a role exclusive to the mother. It was not special treatment in connection with pregnancy and child-birth it was about special treatment for caring for a newborn baby. This was not about denying full pay to a [woman], it was about equality of treatment in relation to pay for the Claimant to access the same benefits for performing the same role.”

  32. The overarching submission made by Mr Burns QC for the Respondent is simple and straightforward. The leave the Claimant states he was deterred from taking, shared parental leave (“SPL”), is available to men and women on equal terms. There is no discrimination between the sexes either on the ability to take such leave or on the payment made by the Respondent to those who take such leave.

  33. The Telefonica Shared Parental Leave Policy applies to birth parents and to parents of an adopted child. The policy on SPL provides:

    “… Up to 50 weeks’ leave and 39 weeks’ pay can be shared between the parents if the mother brings her maternity lave and pay to an end early.”

  34. The Telefonica Policy provides that SPL is available in relation to the birth of a child to the child’s mother, father and adopter. In order to be entitled to SPL the mother or one of the adoptive parents must opt to bring their maternity leave or adoption leave to an end. Maternity leave cannot be brought to an end until after the two week compulsory maternity leave period. The policy provides that:

    “If you are not the mother and she is still on maternity leave or claiming Statutory Maternity Pay. or Maternity Allowance, you will only be able to take SPL once she has either:

    • Returned to work

    • Given her employer a curtailment notice to end her maternity leave

    …”

    A similar provision applies to SPL and adoption leave and pay.

  35. Mr Burns QC pointed out that the entitlements to SPL and ShPP are the same for parents of either sex.

  36. Maternity leave can start, at the option of the woman, after beginning the 11th week before the week in which the baby is due and no later than the expected week of childbirth.

  37. Maternity pay starts from the day maternity leave begins or, if the baby is born early, from the day the baby is born.

  38. Mr Burns QC pointed out that the policy provides that if there is a stillbirth with a baby dying before they are born after the 24th week of pregnancy, or if the baby is born alive but dies immediately or soon after, the woman is able to take maternity leave and pay. Counsel submitted that this policy is consistent with, and demonstrates that, the policy of maternity leave and pay is primarily for the health and wellbeing of the mother rather than for the care of the baby. There is no eligibility for shared parental leave or pay if there is no baby to care for.

  39. Mr Burns QC stated that the ET failed to refer to the purpose of maternity leave as being for the health and wellbeing of the mother. Maternity leave clearly has that purpose as demonstrated by the European Directive which the domestic law implements and the domestic law provisions themselves. This purpose is reflected in the Telefonica policy.

  40. The Pregnant Workers Directive was introduced under Article 118a, the health and safety provision in the Treaty. The preamble to the Directive and Article 1 state as its purpose the implementation of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. Article 8 recognises that more than two weeks leave are needed by a woman who has given birth. Member States are required to take necessary measures to provide for a continuous period of maternity leave of at least fourteen weeks allocated before and/or after confinement.

  41. Whilst under domestic law, MAPL Regulation 8, compulsory maternity leave of two weeks commences on the day of childbirth, Mr Burns QC submitted that the fact that in accordance with Regulation 6(1) ordinary maternity leave of twenty six weeks can start up to eleven weeks before the expected date of confinement, demonstrates that maternity leave and pay are primarily for the benefit of the health and wellbeing of the mother as there is no child to care for when it can start.

  42. Mr Burns QC also referred to the statutory provisions governing adoption leave and pay. Under the Paternity and Adoption Leave Regulations 2002 SI 2002 No 2788, ordinary adoption leave commences no earlier than the date on which the child is placed with the claimant for adoption. It was submitted that where the adopter has not given birth, the Regulations show that the benefit of leave and pay are for the purpose of looking after the child. This is to be contrasted with maternity leave and pay.

  43. Mr Burns QC submitted that the authorities clearly establish that the primary purpose of maternity leave and pay is the health and wellbeing of the mother. In Hofmann v Barmer Ersatzkasse [1985] ICR 731 the Court of Justice of the European Community (“CJEU”) considered the proper interpretation and application of the Equal Treatment Directive 76/207 which contained predecessor provisions to the Pregnant Workers Directive. The CJEU held:

    “24. It is apparent from the above analysis that the directive is not designed to settle questions concerned with the organisation of the family, or to alter the division of responsibility between parents.

  44. It should further be added, with particular reference to paragraph 3, that, by reserving to Member States the right to retain or introduce provisions which are intended to protect women in connection with “pregnancy and maternity”, the directive recognises the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.

  45. In principle, therefore, a measure such as maternity leave granted to a woman on expiry of the statutory protective period falls within the scope of Article 2(3) of Directive 76/207, inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood. That being so, such leave may legitimately be reserved to the mother to the exclusion of any other person, in view of the fact that it is only the mother who may find herself subject to undesirable pressures to return to work prematurely.”

    Mr Burns QC pointed out that the ET did not refer to Hofmann. Further, the ET did not refer to Gillespie v Northern Health and Social Services Board [1996] ICR 498 in which the CJEU held at paragraph 20 that the “purpose of maternity leave … [is] the protection of women before and after giving birth”. The amount payable during maternity leave must not be so low as to undermine that purpose.

  46. Mr Burns QC submitted that the ET failed to take into account the particular purpose of maternity leave and pay, as explained both in European and domestic legislation and in authorities in erroneously deciding in paragraph 5.37, that a claimant who wished to take shared parental leave could compare his treatment with a hypothetical female comparator paid at the maternity pay rate.

  47. Even if the ET did not err in holding that the Claimant seeking shared parental leave could compare himself with a woman on maternity leave, Mr Burns QC submitted that the ET erred in holding at paragraph 5.42 that the claim for the equivalent of maternity pay was not about special treatment in connection with pregnancy and childbirth and therefore did not fall within ERA section 13(6)(b).

  48. Counsel for the Respondent referred to the judgment of the CJEU in Betriu Montull v Instituto NSS [2013] ICR 132 in which the court considered the connection between the difference of treatment in men and women in connection with pregnancy and childbirth provided for in ETD Article 2(3); this provision is implemented in EqA section 13(6)(b) and was considered by the ET. In Betriu the CJEU were dealing with a national measure which provided for a difference in treatment between the...

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