An employment tribunal has upheld a claim that an employer’s failure to enhance shared parental leave pay in line with its enhanced maternity pay, amounted to unlawful sex discrimination.

Ali v Capita Customer Management Ltd, ET

Facts

The employee in this case, Mr Ali, wanted to take a period of shared parental leave when his wife was advised to end her maternity leave early and return to work due to a diagnosis of postnatal depression.

Under the applicable policies, male employees were entitled to two weeks’ paternity leave paid at full pay. Female employees taking maternity leave were entitled to 14 weeks of full pay, followed by the statutory entitlement. Shared parental leave (SPL) was paid at the statutory rate of pay.

Mr Ali considered that he should be entitled to enhanced pay for taking SPL, equivalent to the pay granted to female employees taking maternity leave (after two weeks of compulsory maternity leave). He brought a grievance against his employer, which was rejected. He then brought claims in the employment tribunal, for both direct and indirect sex discrimination.

Tribunal decision

The employment tribunal upheld Mr Ali’s claim for direct sex discrimination. After the two week period of compulsory maternity leave, it was open to parents to decide who was the most appropriate person to care for the child.

The tribunal disagreed with the employer’s argument that the 14 weeks’ minimum maternity leave provided for by the Pregnant Workers Directive justified a period of 14 weeks’ special treatment for the mother. Beyond the two weeks of compulsory leave, which was specifically for the purpose of protecting the mother’s health and safety, the entitlement to take leave is for the purpose of bonding with and caring for the child. This can be a male or female role, depending on the choice of the parents. According to the employment judge:

“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.”

The employer’s refusal to pay Mr Ali an enhanced rate of pay for a period of SPL therefore amounted to less favourable treatment on the grounds of his sex. Mr Ali’s claim for indirect discrimination was rejected on the grounds that the maternity policy was not gender neutral (it applied only to female employees) and could therefore not form the basis of an indirect discrimination claim.

Consequences

As a decision of an employment tribunal, this decision is not binding on other tribunals. According to the technical guidance issued when SPL was first introduced, there is no obligation on employers who enhance maternity pay to enhance pay for SPL. The Government’s view was that there could be no direct sex discrimination provided both male and female employees were entitled to the same rate of pay for taking SPL.

In a previous case (Hextall v Chief Constable of Leicestershire Police), the employment tribunal rejected an employee’s claim that it was sex discrimination to enhance pay for maternity leave, but not for SPL.

It has been reported that both of these decisions are being appealed to the EAT. For the time being, therefore, employers are probably best advised to hold fire before considering whether to make any changes to their family leave policies.