Whether employers can lawfully – or indeed should – equalise the Shared Parental Pay which they offer with the enhanced maternity pay which they provide – is proving not to be a straightforward issue as a recent Employment Tribunal decision demonstrates.

Facts

In Ali v Capita Customer Management Limited, Mr Ali was employed by Capita Customer Management Limited following a TUPE transfer from Telefonica. Following the birth of their child in February 2016 Mr Ali’s wife was diagnosed with post-natal depression and was advised by her doctor to return to work to aid her recovery. Consequently, Mr Ali requested time off to care for his daughter. Mr Ali was advised that he was eligible for shared parental leave (SPL) under Capita’s policy but would only be entitled to statutory Shared Parental Pay (ShPP) in respect of that period of SPL. Mr Ali discussed this situation with female colleagues who had transferred from Telefonica who confirmed that they were entitled to full pay for 14 weeks’ maternity leave under the Telefonica policy. Mr Ali believed that in the circumstances he should have the same entitlement. Mr Ali raised his concerns with his union and subsequently raised a grievance alleging sex discrimination complaining that he found it “unfair that the company only pays statutory pay for shared parental leave and gives enhanced pay to the female member of staff when she is on maternity leave. I find this to be discrimination against me as I am a male and don’t get the same treatment as a female.” Mr Ali’s grievance was not upheld by Capita which took the position that it did not have a legal obligation to pay the father at an enhanced rate for SPL.

Mr Ali subsequently brought claims for indirect sex discrimination, direct sex discrimination (which is the focus of this OnPoint) and victimisation in the Employment Tribunal. In respect of his direct discrimination claim Mr Ali argued that, to establish whether he had been discriminated against, he should be compared with a female employee who transferred from Telefonica, who had a baby in February 2016 and who was taking leave after the two week compulsory maternity leave period to care for her baby. Mr Ali accepted that there was a material difference between a male and a female which justified disparate treatment in respect of the two weeks immediately following the birth of a child – as a woman cannot by law be allowed to work in that compulsory maternity leave period. However, he argued that after the first two weeks of compulsory maternity leave, parents should have the choice to decide who will care for their child and yet this choice is prejudiced by the father not being entitled to the same pay as a woman performing the same role. As he was only entitled to ShPP at the statutory level Mr Ali argued that he was deterred from taking leave to care for his child.

In response Capita argued that:

  • The comparison was not valid as Mr Ali had not given birth. The law entitles only females to maternity leave and maternity pay – even if enhanced above the statutory level - because of the special considerations that apply to a women who has recently given birth.
  • Section 13(6)(b) of the Equality Act 2010 legitimised its approach – it provides that in cases of direct sex discrimination brought by a man “no account is to be taken of special treatment afforded to a woman in connection with pregnancy and childbirth”. Capita argued that for it to provide maternity pay for 14 weeks only to women was reasonably necessary to ensure that woman are not deterred from taking maternity leave and mirrors the minimum period provided for under the Pregnant Workers Directive 92/86/ECC. Consequently not to extend the same pay level to fathers taking SPL was not unlawful discrimination.
  • Although Mr Ali was deterred from taking leave he did not actually take leave. Accordingly he could not say that he was treated less favourably as he did not take the leave.

Decision

The Employment Tribunal held that Mr Ali could compare his treatment to the comparator he identified. The Employment Tribunal accepted that Mr Ali was denied the benefit available to that female comparator, he was deterred from taking leave by his lower entitlements and was treated less favourably because of his sex.

The Employment Tribunal took the view that it was not clear why any preferential treatment as between women on maternity leave and men on SPL should apply beyond the two weeks following the birth of the child. The observation was made that the choice of which parent plays the greater role in childcare should be free of generalised assumptions that the mother is always best placed to undertake that role and should receive enhanced pay because of that assumed exclusivity of role.

Comment

The suggestion in Ali that after the two week period of compulsory maternity leave there are no crucial distinctions between a woman who has given birth who wants to care for her child and a man who wants to care for his child may be controversial, especially with anyone who has ever give birth. By way of example, NHS guidance acknowledges that women who undergo a caesarean may not be able to drive, exercise or carry anything heavier than their baby for six weeks or so. This decision is also contrary to the guidance in the Pregnant Worker’s Directive which suggests that a minimum of 14 weeks is required and the guidance published by the Department for Business Innovation and Skills which suggests that an employer is not required to top-up ShPP just because it offers enhanced maternity pay.

A different result was reached in the earlier Employment Tribunal case of NJ Shuter v Ford Motor Company Limited. In that case the Employment Tribunal rejected Mr Shuter’s claims of direct discrimination, in which he sought to compare himself to a female Ford employee on maternity leave. In Shuter, the Employment Tribunal did not accept that a woman on maternity leave was an appropriate comparator because there were material differences between the circumstances of the comparator and Mr Shuter - the proposed comparator would have been pregnant and given birth and would have been caring for the child and possibly breastfeeding. The Employment Tribunal held that the correct comparator should have been a female applicant for additional paternity leave, namely a civil partner or female spouse. Applying this approach to Mr Ali’s case, the correct comparator would be a female applicant for SPL, namely a civil partner or female spouse who transferred from Telefonica and wanted to care for her baby because the child's birth mother had returned to work. On that analysis the comparator would have the same entitlements as Mr Ali and so there would have been no discrimination.

It may be that the different decisions in these two first instance Employment Tribunal cases reflected their particular circumstances. For example, in particular, in Ali Mrs Ali was suffering from post-natal depression and had been advised by her doctor to return to work thereby leaving Mr Ali to be the primary caregiver. If, however, the obligation to enhance ShPP depends on the facts of the case, employers will face uncertainty and increased potential risk of claims, especially if there is no further case law guidance. Many questions would then arise. For example, should the obligation to enhance ShPP only arise if the birth mother has returned to work? Is medical opinion relevant or required? Should ShPP only be enhanced if SPL is taken immediately after compulsory maternity leave? and the list goes on….

Ali is only a first instance decision and is not binding on other tribunals. However, these case law developments will have many organisations thinking about their existing policies. Hopefully the Employment Appeal Tribunal will soon have the opportunity to give some definitive guidance on this issue.