The Employment Tribunal in Ali v Capita Customer Management Limited has ruled, in a non-binding judgement, that a father was discriminated against on the grounds of sex when his employer refused to pay enhanced shared parental leave pay.
Mr Ali is a Customer Relations Adviser at Capita Customer Management Limited. His employment TUPE-transferred across to Capita from Telefónica in July 2013. Telefónica's policies also transferred with the employees and continued to apply.
In February 2016, Mr Ali's wife gave birth to their daughter and Mr Ali took the two weeks of fully paid paternity leave to which he was entitled. During his paternity leave, Mr Ali informed his line manager that his wife had been diagnosed with post-natal depression. Mr Ali took pre-booked annual leave immediately following his paternity leave and was able to book a further week's paid leave to care for his daughter.
Mr Ali's wife was medically advised to return to work to assist her recovery from post-natal depression. Mr Ali looked to shared parental leave (SPL) as a way of taking further time off work to be the primary carer for their daughter.
Under shared parental leave legislation, a mother is able to end her maternity leave early or commit to doing so, and share any untaken leave with the baby's father so that he may take leave from work to care for the child. She may share all weeks except the first two, which are compulsory maternity leave for health and safety reasons for women to recover from childbirth.
Under the transferred Telefónica maternity leave policy, new mothers were entitled to 14 weeks of full pay. By contrast, under the transferred Telefónica shared parental leave (SPL) policy, SPL pay was set at the statutory rate.
Mr Ali accepted that the first two weeks of maternity leave were specifically put in place for recovery from childbirth, which justified the special treatment (full pay) during this period. During that two week period Mr Ali was also paid his full pay for paternity leave so was not treated less favourably in any case.
In respect of 12 weeks following the compulsory maternity leave period, Mr Ali brought (among other claims) a claim of direct sex discrimination for the difference in pay for male employees and female employees following the birth of a child. He complained that as a male he was only entitled to two weeks' fully paid leave whereas a female Telefónica transferred employee was entitled to 14 weeks' fully paid leave. He argued that after the first two weeks, either parent could care for the child and that the assumption that as a man caring for the baby during this period, 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. He argued that this was directly discriminatory on grounds of sex and was not a valid assumption to make in 2016.
The Tribunal agreed. It noted that in 2016, men are being encouraged to play a greater role in caring for their babies. The choice of whether that happens in practice is the parents' choice, but that choice "should be made 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 Tribunal considered the Respondent's argument that this could be attributed to (and therefore defended by) the Equality Act's exception for different treatment on the grounds of sex which could be attributed to special treatment in connection with pregnancy and childbirth. However, the Tribunal disagreed with this argument, holding that the pay during the relevant 12 weeks was not about special treatment in connection with pregnancy and childbirth, but about special treatment for caring for a newborn baby. The caring role Mr Ali wanted to perform was not exclusive to the mother.
This decision may well be a cause of some concern for many employers, for whom it has long been the practice to offer enhanced maternity pay but who did not offer enhanced SPL pay when SPL was introduced in April 2015.
Employers should be reassured that, being a first-instance decision, this is not binding on other Tribunals. However, it follows in a trend, being the third claim about enhanced SPL pay – one successful, one unsuccessful – and we can expect a spate of similar claims challenging existing case law that employers are justified in offering more generous maternity benefits than the benefits afforded to fathers.
Capita has lodged an appeal against the Tribunal decision. Employers should watch this space for the outcome which will be welcomed as a more senior decision will give a binding view (subject to any further appeal) on this interesting interplay between maternity and shared parental leave benefits.