A tribunal has ruled that an employer's failure to enhance pay for shared parental leave (SPL) to the same level as enhanced maternity pay is direct sex discrimination.

Employers who enhance maternity pay but not shared parental pay should be aware of a first instance decision that, if upheld at higher levels, would require them to change their approach. The tribunal in Ali v Capita Customer Management Limited has upheld a father's direct sex discrimination claim in relation to his employer's refusal to pay him 12 weeks' full pay during shared parental leave, when a mother taking maternity leave would have been entitled to 12 weeks' full pay (in addition to 2 weeks' fully paid compulsory maternity leave).

Background

When the shared parental leave regime came into force for expected births from 5 April 2015, one of the key questions for employers who enhanced statutory maternity pay was whether to enhance statutory shared parental pay to the same extent. The Government's view was that there was no obligation to do so, on the basis that there cannot be any (direct) sex discrimination given that both female and male parents on SPL are treated alike. However, many commentators noted that the legal position was perhaps not so clearcut and in any case there remained the potential for other claims such as indirect discrimination. Fathers might be able to claim that the SPL policy itself was indirectly discriminatory on the basis that such a policy disadvantages men disproportionately, and it would then be for the employer to objectively justify its policy (for example, by the need to recruit and retain women in a male-dominated workforce as in Shuter v Ford Motor Company Ltd).

Tribunal ruling

This latest case is the first to consider the issue of direct discrimination. The claimant took two weeks' paternity leave following the birth of his daughter. During this time, his wife was diagnosed with post-natal depression and was advised to return to work to help overcome this. The claimant sought to take further paid leave and was informed by his employer that he was entitled to shared parental leave, but only at the statutory rate of pay. In contrast, the employer would have allowed a comparable mother 14 weeks' maternity leave on full pay.

The claimant accepted that the two week period of compulsory maternity leave was to protect the mother's health and safety arising from her biological/physiological condition and recovery following childbirth, and therefore merited special treatment. In any event, the claimant received full pay for the two weeks' of paternity leave so was not disadvantaged for this period. He did not accept that the following 12 weeks' maternity leave were also uniquely for the protection of the mother given her special biological/physiological condition. He argued, and the tribunal accepted, that following the introduction of SPL, the 12 week period could be taken by either mother or father, and indeed a father adopting a child can take the role of primary carer (and the statutory rights equivalent to maternity leave) from day 1. It is only the 2 weeks' compulsory maternity leave that is unique to those who have given birth; the other leave entitlements are for bonding and care of the child, which can be a female or male role depending on the choices the parents make. The tribunal did not agree that the 14 weeks' minimum maternity leave (including the 2 weeks' compulsory leave) provided for by the Pregnant Workers Directive justified a 14 week period of special treatment to be kept exclusively for the mother. The exclusion of fathers from entitlement to the benefits set out in the maternity policy was therefore unlawful direct discrimination.

The judgment does not address the legal arguments in any detail and it may well be confined to the situation where a father has made clear to the employer that he wishes to carry out the "primary caregiver role" during the 12 week period. In this case the tribunal emphasised that the claimant had advised the employer that his wife was returning to work on medical advice, which made him best placed to perform that role. Fathers who wish to take shared parental leave concurrently with the mother may find it more difficult to show direct discrimination in this way. Employers should watch out for further developments.