In Ali v Capita Customer Management Ltd ET/1800990/16, an employment tribunal upheld a male employee's direct sex discrimination claim on the basis that he was offered only statutory shared parental pay while a female colleague on maternity leave would have been paid enhanced maternity pay.

Mr Ali transferred under TUPE from Telefonica to Capita in 2013. Female employees who transferred were entitled during maternity leave to 14 weeks on full pay and 25 weeks' statutorymaternity pay. Male employees who transferred were entitled to 2 weeks' ordinary paternity leave on full pay followed by up to 26 weeks' additional paternity leave with no guaranteed pay.

Mr Ali's wife suffered from post-natal depression after the birth of her daughter and was advised to return to work. Mr Ali took his two weeks' paid leave and explored the option of taking shared parental leave (SPL). His employer informed him that he could take SPL but would only be paid statutory shared parental pay. He brought claims of direct sex discrimination, indirect sex discrimination and victimisation in the Employment Tribunal.

The tribunal found that he had been directly discriminated against. The decision was based on its view that Mr Ali could compare himself with a hypothetical female employee who was on maternity leave after the initial two week compulsory maternity leave.

The tribunal considered the requirement in section 13(6)(b) Equality Act 2010 which states that no account is to be taken of the special treatment afforded to women in connection with pregnancy or childbirth when determining if a man has been sexually discriminated against. It decided that the enhanced maternity pay available to women under the contract after the initial two weeks was not protected as special treatment in connection with pregnancy and childbirth. Rather it was special treatment for caring for a newborn baby, which role is not exclusive to women. In reaching this decision, the tribunal commented that the purpose of the shared parental leave and pay rules is to encourage men to take a greater role in caring for their babies.

This decision contrasts starkly with another employment tribunal decision in Hextall v Chief Constable of Leicestershire Police ET/2601223/15 in which it was decided that it was not sex discrimination to offer enhanced maternity pay (to women) but only statutory shared parental pay (to men). In this case, the tribunal determined that the correct comparator for a male claimant was a woman taking SPL rather than a woman taking maternity leave. This was on the basis that both women and men on SPL would be paid only the statutory amount.

The cases of Ali and Hextall are both expected to be appealed. An EAT decision on this matter will hopefully bring more clarity.