In the case of Capita Customer Management v Ali, the Employment Tribunal ruled that a male employee was directly discriminated against when his employer refused to allow him to take shared parental leave at full pay under the terms of its family friendly policies.
Ali joined Capita Customer Management via a Transfer of Undertaking (Protection of Employment) Regulation 2006 (TUPE) transfer from telecoms giant Telefonica, in 2013. Under the terms of its family friendly policies, female employees who had transferred from Telefonica were entitled to 14 weeks’ maternity leave at full pay following the birth of their child; however, male employees, such as Ali, who had transferred were entitled to two weeks’ paid leave following the birth of their child.
Immediately following the premature birth of his daughter in April 2016, Ali took two weeks’ paid paternity leave in addition to a week’s annual leave. Ali then wished to take more time off to take care of his daughter after his wife suffered from post-natal depression and was advised to return to work by medical professionals in order to assist her recovery.
Ali was informed he would only be eligible for shared parental leave (SPL) under the Capita Customer Management policy; this would entitle him to statutory pay only. He therefore argued that he was being discriminated against on the basis that a female employee would have received 14 full weeks’ pay. Mr Ali’s claim focused on the 12 weeks following the two week period which immediately followed the birth of his child: he accepted that he had received his paternity pay at full pay during this period whilst his wife received compulsory maternity leave to help her recover physically.
On 16 March 2017, Employment Judge (EJ) Rogerson ruled in favour of Mr Ali’s claim for direct sex discrimination.
Notably, EJ Rogerson commented that “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.” The Tribunal therefore recognised that whether that happens in practice is ultimately up to the parents to decide but with an emphasis that their decision should be “free of generalised assumptions that the mother is always best placed to undertake that role”.
Given the Tribunal’s position, the ruling seems troubling for many employers who provide enhanced maternity pay to their female employees under family-friendly policies, which is commonplace in many industries.
However, the extent to which employers should be concerned is questionable given the conflicting authority of Hextall v Chief Constable of Leicestershire Police handed down on 17 August 2016 in which a Tribunal held that a police force’s policy of giving a period of full pay to female employees on maternity leave but only paying statutory shared parental pay to their partners was not discriminatory. In addition, the government has issued technical guidance which states that shared parental pay need not match enhanced maternity pay.
The decision in Ali highlights the conflicting approaches of the Tribunal at first instance (so non-binding decisions) and therefore practical advice for employers at the time of writing may be to watch this space for an appeal. However, it is important to note that Ali is likely to give a good indication of the Tribunal’s approach to the growing interrelationship between an employee’s pay during paternity / shared parental leave and their sex. Employers may wish to revisit their policies and take legal advice if necessary.
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