From the editor: the courts have got it wrong on dads

Landmark cases on maternity and paternity leave came to head last week but the result was unfair on both sexes



Despite the fact there are an AWFUL LOT of mums and dads in the country news about or for parents never seems to get that far up the agenda.

My pet theory is that is because the news is still largely written by men who rarely see their kids (an improvement on a generation previous when it was written by men who never saw their children because they knocked off and went to the pub instead of going home). But I can’t prove it. The fun of pet theories is you don’t have to prove them.

However, last Friday’s important story for parents really stood no chance of getting significant coverage coming just ahead of a bank holiday weekend and going up against the Prime Minister quitting.

But that doesn’t make it any less key.

The Court of Appeal ruled that firms are OK to provide enhanced pay and leave for mothers and they don’t need to match that for dads.

Treating the two sexes differently isn’t discrimination in this case.

Except, of course, it kind of is.


The ruling came about after two landmark cases, heard together, reached their conclusions. One brought against Leicestershire Police, the other against outsourcing giant Capita.

Their lawyers were pleased to have won, but noticeably not jubilant.

In her comments on the case one lawyer, Nicola Ihnatowicz, partner at Trowers & Hamlins highlighted that this ruling may be sound in law but surely can’t hold as society evolves. She said: “Employers can rest assured for now that, legally, their shared parental pay arrangements do not have to be enhanced as a failure to do so will probably not be discriminatory. However, in the modern workplace, this issue isn’t going to go away as families demand that their employers cater for the more flexible ways in which they choose or are obliged to divide or share their childcare.”

Perhaps surprisingly pressure group Working Families got involved on the side of the employers.

They were concerned that if firms offering over and above fairly lame statutory maternity leave and pay to mums but not dads were deemed to be doing something wrong they’d simply can the enhanced policies and offer everyone the same basic package.

That’s depressing. It’d be nice to think that had the court case gone the other way firms would suddenly bring their paternity policies up to match what they offer mums. Realistically that was never going to happen in the short term. But in the long term? Imagine how much more attractive to potential employees those firms that did level up would be.

Magic yoga

Working Families other big worry was that if it was deemed unfair to give women different treatment to men when it comes to childbirth then mothers could lose the special protection in law they need to recover from the rather significant demands of actually giving birth. And that’s what the judgments ultimately came down to. Parliament has specifically said it’s OK to discriminate in favour of mums when they just done a baby. That makes sense. Obviously I’ve no personal experience of what’s involved but I’ve seen it done (twice) and while my partner handled labour better than most fuelled only by some magic yoga it still didn’t look a lot of fun.

However, it’s at this point that things get really interesting. The judges said maternity leave is about ‘more than facilitating childcare’. True. But by doing so they showed that they regarded what a father does as just ‘facilitating childcare’.

They were right to suggest maternity leave is about recovering from birth, breastfeeding, bonding with their baby and caring for their child. But dads need time to bond with and care for their child too.

Does it really take 12 months to recover from childbirth? In a few cases yes, in most cases not. (And perhaps men need time to recover from the birth. Male post-natal depression is a controversial concept but it’s catching on.) Can a man really be expected to bond satisfactorily with this baby in just two weeks of statutory paternity pay? In a few cases yes, in most cases not.

Sure men can’t breastfeed but that’s a quirk of biology, it doesn’t mean women have some special ability to parent that men lack. (And anyway, breastfeeding and attitudes to it are hotly contested. Let’s agree it’s not straightforward and leave it at that.)

Glorified babysitters

The judgment spoke to a feeling that mothers are magic while fathers are glorified babysittters. And that’s unfair on both sexes.

Many women are desperate to return to work after becoming a mum. Most men want more time off with their kids.

But as long as the rules around maternity and paternity leave are unbalanced they put financial and cultural barriers in the way of parents who want real choice about how they want to organise their family life.

Had the ruling gone the other way I can see the concerns and issues it would’ve raised. They would have been serious, they could have been overcome.

By coming down on the side of the status quo the courts may have been correct in law but as far as society goes – and the law fails if it doesn’t reflect attitudes more widely – this judgment is quite simply a honker.

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