We blogged in June last year about the employment tribunal claim of Ali -v- Capita Customer Management Ltd where Mr Ali was successful in his claim for direct sex discrimination. Female employees at Capita were entitled to 14 weeks’ full pay on maternity leave whereas fathers were only entitled to two weeks’ full pay on paternity and shared parental leave. Mr Ali’s wife was advised to return to work early from maternity leave after being diagnosed with post natal depression. Mr Ali asked Capita whether he could take leave instead and was told he could take shared parental leave on statutory pay. The Tribunal found that this was direct sex discrimination.

The EAT disagreed and yesterday overturned the decision of the Tribunal. They found that maternity pay is inextricably linked to the reason for maternity leave which is the health and wellbeing of a woman in pregnancy and following childbirth. That is not comparable with a man on shared parental leave. The correct comparator is a woman on shared parental leave. Parents of either sex could take shared parental leave on the same terms so there was no direct sex discrimination.

Employers across the country will be breathing a collective sigh of relief following this decision. It remains to be seen whether the case is appealed further but, in the meantime, this is reassuring for those employers who do not enhance pay for paternity or shared parental leave in the same way as maternity leave.