M Ali v Capita Customer Management Limited 1800990/2016

The Employment Tribunal has held that a male employee whose employer refused to pay him full pay during his additional paternity leave was directly discriminated against on the grounds of his sex.

Mr Ali took two weeks' paid paternity leave on the birth of his daughter. During this fortnight, his wife was diagnosed with postnatal depression, and she was medically advised to return to work to assist her recovery. As a result, Mr Ali sought to benefit from shared parental rights and made a request to his employer, Capita, to take the remainder of his wife's maternity leave to look after the child whilst she went back to work.

Capita's policy stated that, for any additional leave, Mr Ali was only entitled to statutory shared parental pay. Mr Ali brought a claim of direct sex discrimination on the basis that he should have been entitled to the same rights of enhanced pay as a female colleague following the birth of her child.

The ET upheld his claim. It ruled that after the first two weeks of the child's life, during which the mother must recover physically from giving birth, the treatment of a man and woman are comparable, as either could assume the role of primary carer. Mr Ali was denied the benefit of 12 weeks' full pay afforded to a woman following 2 weeks' compulsory maternity leave, and he was deterred from taking the leave as a result.

The judgment confirmed the importance of allowing parents a practical choice on childcare based on their circumstances, without the hindering assumption that the mother is always best placed to care for a child and should therefore be the only parent entitled to receive full pay.

There has been little previous case law on enhanced shared parental pay and this ruling is not binding as a first-instance decision. However, employers should maintain clear business reasons for their parental leave policies, and ensure employees are supported equally in the weeks after their child is born.