Mr M Ali v Capita Customer Management

Background

Shared Parental Leave enables eligible mothers, fathers, partners and adopters to choose how to share time off of work after their child is born.

Mr Ali joined Capita Customer Management via a business transfer from Telefonica in 2013. As a male employee, Ali was entitled to two weeks of paid leave following the birth of his daughter. A female employee who also had transferred from Telefonica would have been entitled to up to 14 weeks of leave at full pay following the birth of a child. Following the birth of his daughter, Mr Ali took his two weeks paternity pay followed by a week of annual leave. Mr Ali’s wife received medical advice that she should return to work early to aid in her recovery from post-natal depression, so Mr Ali asked his employer for further leave to care for his daughter.

Mr Ali was told that he was only eligible for shared parental leave under the Capita policy, entitling him to statutory pay. Mr Ali claimed that this would leave him at a financial disadvantage and was therefore discouraged from taking further paternity leave. He argued that he should receive the same paid leave entitlement as a female colleague who had transferred from Telefonica and the fact that he was not eligible for the same length of paid leave amounted to direct discrimination on the grounds of sex.

Decision

The tribunal agreed that Mr Ali had been the subject of direct sex discrimination. The judge stated, “It was not clear why any exclusivity should apply beyond the two weeks after the birth. In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances, but the choice made 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.

Comment

This case may be somewhat concerning for employers who provide enhanced maternity pay to female employees. Case law has previously indicated that employers can provide better pay for female employees because of the unique position they are in due to giving birth and caring for the infant, but it looks as if the tribunal is moving forward with the social norms of the millennial generation. Employers who have chosen to enhance maternity pay, but not shared parental pay, may wish to consider the commercial reasons behind their family friendly policies. However, nothing is set in stone at this stage as we wait to hear if this decision has been appealed to the EAT.