Shared Parental Pay and Discrimination

In the case of Ali v Capita Customer Management Ltd an Employment Tribunal decided that a male employee who took leave to care for his child had suffered direct sex discrimination when he did not receive enhanced pay that would have been available to a female employee.

Background

A number of employees, including Mr Ali, transferred from Telefonica to Capita, and Telefonica’s policies transferred with them. Telefonica’s maternity policy gave female employees up to 14 weeks’ enhanced maternity pay. Under Telefonica’s paternity policy, fathers were entitled to 2 weeks’ full pay.

After having a baby, Mr Ali’s wife was advised by her doctor to return to work to try to combat post-natal depression. Mr Ali had already taken 2 weeks’ paternity leave and some annual leave to help care for the baby. Mr Ali was advised by his employer that he could take shared parental leave when his wife went back to work, however he would only receive statutory shared parental pay. After a grievance process that did not find in his favour, Mr Ali brought a claim for direct sex discrimination, saying that he was treated less favourably than a comparable female employee. A male employee was only entitled to 2 weeks’ paid leave whereas a female employee would be entitled to 14 weeks’ paid leave. Mr Ali accepted that special treatment of a female employee is justified during the compulsory 2 week maternity leave period immediately after birth. However, for the next 12 weeks Mr Ali argued that male employees should have the same rights to enhanced pay as female employees.

Capita argued that Mr Ali was not able to compare himself to a female employee because female employees only have the right to maternity leave and pay because they have given birth.  Capita also pointed to section 13(6)(b) of the Equality Act, which states that in determining whether a man has been discriminated against because of sex, no account is taken of the special treatment afforded to women in connection with pregnancy or childbirth.

The Employment Tribunal’s decision

The ET upheld Mr Ali’s claim. The ET noted that Mr Ali was asking for leave to perform the same role his female comparator would have performed with full pay. In the ET’s view his comparison with a female employee was valid, and section 13(6)(b) did not prevent that comparison. The ET noted the greater role of fathers in caring for their children. It said that the arrangements parents make for the care of their children is a matter of choice for them, based on their personal circumstances, but “the choice 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”.

The ET’s decision is at odds with the decision in a similar, earlier case, Hextall v The Chief Constable of Leicestershire Police. In Hextall, the ET found that any less favourable treatment was not because of the male claimant’s sex, and any relevant more favourable treatment was lawful pursuant to section 13(6)(b). Further, the ET did not accept that a woman on maternity leave was a valid comparator for a man on shared parental leave getting shared parental pay.

What does this case mean for employers?

CIPD research has shown that just 5% of new fathers and 8% of new mothers have opted to take shared parental leave since April 2015, when it was introduced.  Most employers, therefore, have not yet had an employee who has actually taken this leave. However, other research has revealed that a large proportion of employers who enhance maternity pay for their employees do not enhance shared parental pay. Those employers need to carefully consider their approach in light of Ali. This case and Hextall were both “first instance” employment tribunal decisions, which means that they are not binding on future tribunals. However, it is understood that Capita will appeal the decision in the Ali case. Clarity from a higher tribunal would be welcome, as we hope it would give guidance to employers about whether they need to change their shared parental leave policy.