An employer’s refusal to provide 14 weeks’ paid parental leave to a male employee was held not to be discriminatory in a recent case. The employee was a male nurse who, after finding out his partner was pregnant with their first child, requested paid parental leave from his employer pursuant to its Parental Leave Human Resource Policy (Policy).
Because his partner was unable to take much time away from her own business, the employee decided that he would be the primary caregiver for their child following its birth.
After the employer refused the employee’s application for paid parental leave (and a further application for ‘special leave’), the employee made a discrimination complaint to the Queensland Civil and Administrative Tribunal (Tribunal). The employee argued that the employer’s refusal to provide him paid parental leave amounted to both direct and indirect discrimination on the ground of sex in contravention of the Anti-Discrimination Act 1991 (QLD) (QLD Act).
The Policy pursuant to which the request for paid parental leave was made outlined ‘maternity leave’ entitlements and arrangements, which it said encompassed ‘parental leave...spousal leave....pre-natal/pre-adoption leave and adoption leave’. In effect, the Policy, at least implicitly, limited paid parental leave entitlements to female employees who were mothers-to-be.
The employee alleged the employer had engaged in direct and indirect discrimination by refusing him paid, parental leave under the Policy. The Tribunal dealt with each of the employee’s allegations in turn.
The QLD Act provides that direct discrimination on the basis ofan attribute happens if the person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is, or would be, treated in circumstances that are the same or not materially different. Significantly, the Tribunal found that to determine the meaning of treatment on the basis of a protected attribute, it was necessary to look carefully at the “real reason” why the employer refused the paid parental leave requested by the male employee.
That reason was because the employee was male and the decision-maker within the employer considered, and took advice to the effect that, the Policy required that an applicant be female.
Despite this, the Tribunal found that the employee was not treated less favourably on the basis of the attribute of sex but rather because of a perceived or actual lack of eligibility under the Policy. Further, there was no evidence that, had the employee been female, he would have been treated less favourably than any other female employee who was not an expectant mother who was employed by the employer.
Therefore, even if the application had been made by an employee who was female (for example, a female employee whose same-sex partner was expecting a child) that person would also have been refused parental leave given the relevant comparator was not any female employee, but rather a female employee who was pregnant and had medical evidence to support the expectant date of birth.
The Tribunal also considered whether the requirement that an applicant be female and be pregnant to receive paid parental leave under the Policy was objectively reasonable having regard to the circumstances of the case.
The Tribunal found that it was objectively reasonable that the provision of paid parental leave was restricted under the Policy to expectant or existing mothers. In reaching this conclusion, the Tribunal held that while others might be equally deserving of similar or even the same financial benefits, it does not affect the reasonableness of the regime insofar as it applied to pregnant women.
Lesson for employers
Although the Tribunal found in favour of the employer, it was somewhat critical of the Policy, and commented that the Policy left much to be desired in terms of its clarity on whether only women might apply for that leave.