According to an Employment Tribunal decision in Ali v Capita (2017), enhanced maternity pay could be received by a father in connection with pregnancy or childbirth.

Background

Mr Ali, a former Telefonica employee, transferred to Capita Customer Management Limited as part of a TUPE transfer in 2013.

Mr Ali’s daughter was born on 5 February 2016, following which Mr Ali’s wife suffered with post natal depression. As a result, Mr Ali’s wife was medically advised to return to work to assist in her recovery.

When Mr Ali returned to work, he informed his employer that he would like to exercise his right for Shared Parental Leave to care for his daughter so that his wife could return to work. Mr Ali’s employer advised him that he was entitled to take Shared Parental Leave, but it deterred him from doing so as he would only receive Statutory Shared Parental Pay and not the enhanced maternity pay that his female counterparts were entitled to (Mr Ali’s female counterparts who had transferred from Telefonica and had 12 years’ service, like Mr Ali, were entitled to 14 weeks’ enhanced company maternity pay followed by 25 weeks’ Statutory Maternity Pay).

Why did Mr Ali think that he had been discriminated against?

Mr Ali argued that, after the compulsory maternity leave (2 weeks) that his wife had to take by law, either parent could care for their baby depending on the choices made by the parents and their particular circumstances. Mr Ali argued that he should be entitled to 12 weeks’ of enhanced company maternity pay like his female counterparts.

Mr Ali said that the assumption made, as a man caring for his baby, that he was not entitled to the same enhanced maternity pay as a woman caring for her baby, took away the choice Mr Ali and his wife wanted to make as parents for their baby. Mr Ali argued that this was sex discrimination and not a valid assumption in 2016.

Why did Capita think that Mr Ali had not been discriminated against?

Capita argued that the comparison made by Mr Ali was not valid because Mr Ali had not given birth.

Capita argued that only female employees had the right to maternity leave and the ancillary right to maternity pay because they had given birth. Capita said that this was ‘special treatment’ which could only apply to women who were pregnant and who had given birth. Capita argued that Mr Ali could not take any account for special treatment afforded to women in connection with pregnancy/childbirth.

What did the Employment Tribunal think?

The tribunal found that Mr Ali was denied the benefit of enhanced maternity pay during the subsequent 12 weeks which a female employee caring for her child would have received. The tribunal held that Mr Ali could claim sex discrimination because he was treated less favorably than his female counterparts due to his sex.

The tribunal said that it was not clear why any exclusivity should apply beyond the 2 weeks compulsory maternity leave and that in 2016, men are being encouraged to play a greater role in caring for their babies. The tribunal went on to say that whether this happens in practice is a matter of choice for parents depending on their personal circumstances but the choice should be free of generalised assumptions that the mother is always best placed to undertake that role and should get full pay because of that assumed exclusivity.

The tribunal considered that the caring role Mr Ali wanted to perform was not a role exclusive to the mother. It was not special treatment caring for a newborn baby.

Where does this leave us now?

Whilst Mr Ali’s case is a good outcome for fathers who may need to have a bigger role in the day-to-day care of their babies, the issue of whether male employees are entitled to be paid enhanced maternity from their employer does not remain clear-cut.

In the case of Hextall v Chief Constable of Leicestershire Police for instance, which was heard the year before Mr Ali’s case, the tribunal considered that the starting point for a tribunal was that maternity leave and pay are special and afforded to a women in connection with pregnancy or birth.

Both Hextall and Ali are being appealed and therefore the EAT’s authority on this is greatly anticipated.