Capita had a number of policies in place relating to pay during periods of maternity and parental leave. Female employees taking maternity leave were entitled to 14 weeks of basic pay followed by 25 weeks of statutory maternity pay ("SMP"). Male employees taking ordinary paternity leave were entitled to two weeks' basic pay for that period, with no further entitlement to additional pay for any period of shared parental leave ("SPL") above the statutory rate for shared parental pay ("SPP"). This policy also applied to female employees taking equivalent leave in their capacity as partner of the mother and shared caretaker of the new baby. Mr. Ali took two weeks' paid paternity leave immediately following the birth of his daughter. During that period, his wife was diagnosed with post-natal depression and was medically advised to return to work to assist her recovery. Consequently Mr. Ali requested SPL in order to care for his daughter, asking for the 12 further weeks of basic pay given to employees taking maternity leave. When this was refused and his subsequent grievance was rejected, Mr. Ali issued proceedings in the Employment Tribunal ("ET"). His main claim was that paying a mother on maternity leave more than a father on SPL amounted to direct sex discrimination.
The government guidance that accompanied the legislation expressed the view that there was no discrimination where employers did not match SPP and enhanced maternity pay schemes. However, here the ET upheld Mr. Ali's claim of direct sex discrimination. The tribunal judge found that the initial compulsory maternity leave period of two weeks amounted to "special treatment" designed to aid the mother's recovery after childbirth. However, any maternity leave taken after this two-week period was found to be taken in connection with caring for a newborn child, an activity which was not exclusive to the mother and could be performed by the father. As such, Mr. Ali could compare himself to a hypothetical female colleague on maternity leave beyond the first two weeks of compulsory leave. The ET therefore concluded that the difference between the enhanced maternity pay offered to women and the SPP offered to men in the subsequent 12-week period amounted to direct sex discrimination.
While this decision may seem concerning for employers, it is important to note that ET decisions are not binding, and this case is currently being appealed to the Employment Appeals Tribunal ("EAT"). A judge in a recent ET case on a similar issue also reached a very different conclusion. In Hextall v Chief Constable of Leicestershire Police ET/2601223/15, the ET judge decided that it was not discriminatory to offer enhanced maternity pay without also offering enhanced SPP. This was on the basis that the correct comparator for a man on SPL was a woman on SPL, rather than a woman on maternity leave. As this case is also being appealed, it remains to be seen what direction the EAT and subsequent courts will take on this issue.