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Of course, employers would be at risk of a discrimination claim if they treated women and men taking shared parental leave differently.While taking Capita's approach to shared parental pay is fairly common, the lack of enhanced shared parental pay is potentially one of the reasons why the uptake of shared parental leave has been low.A direct sex discrimination claim will fail if, in this context, a man cannot show he has been treated less favourably than an actual or hypothetical comparator whose circumstances are otherwise materially the same.

The Government's view was that this would not be sex discrimination.It agreed that Mr Ali could compare his treatment with that of a hypothetical female comparator taking maternity leave to care for her child after the two week compulsory maternity leave period, even though he had not given birth (and his circumstances were therefore arguably different).Mr Ali also successfully persuaded the ET that such a hypothetical female comparator would receive more favourable treatment and that he was deterred from taking the leave in comparison.Most employment lawyers considered that the appropriate comparison should be with a female employee on shared parental leave and that, provided she would also only receive statutory pay, then this should not be discriminatory.Some employers decided to only pay statutory pay whereas others decided to be more generous and enhance shared parental pay to encourage its uptake.That maternity leave and pay are provided not or not other than incidentally for childcare is illustrated by the fact that a pregnant woman is entitled to those maternity benefits before the birth of a child".Accordingly, the purpose of maternity leave and pay and shared parental leave and pay were different: the former was about more than just caring for a child.Mr Ali alleged that he was deterred from taking shared parental leave; if he had been a female employee taking maternity leave he would have received 14 weeks' enhanced pay but his employer had told him that if he took shared parental leave for the 12 weeks after his ordinary paternity leave had come to an end, he would only receive statutory pay and not full pay for that leave.Mr Ali argued that as a man caring for his baby, he should be entitled to the same pay as a woman performing that role and claimed that the employer's practice in not providing for this amounted to sex discrimination.Sex discrimination could include: Barbara applies for a job as a bus driver.She had been a transport driver in the RAAF and has plenty of experience.