When the shared parental leave provisions (SPL) were introduced in 2015 there was much debate as to whether employers who offered enhanced rates of pay for women on maternity leave should offer the same to men taking SPL. The government was of the view that that this was not necessary, but it seemed only a matter of time before the courts would have to decide the issue. The latest case has found in favour of a male employee who was not entitled to the same enhanced pay when on SPL that his female colleagues on maternity leave benefitted from (Ali v Capita Customer Management Ltd).
Mr Ali was entitled to two weeks’ paid paternity leave, whilst his female colleagues on maternity leave were entitled to 14 weeks pay, followed by 25 weeks’ at the SMP rate. He claimed that, given that it was open to parents to choose which of them took leave to care for their child, it was direct sex discrimination to then pay the mother more than the father in respect of that leave. The Tribunal upheld his direct discrimination claim.
This will not be the end of the matter. It is only an employment tribunal decision and is therefore not binding on other tribunals. In addition, in an earlier case on this issue, a different tribunal found in favour of the employer. It is however our view that this decision fits with the current direction of travel given the government’s manifesto pledge to encourage greater sharing of childcare responsibilities. Employers should review their policies and consider whether current pay arrangements are deterring male employees from taking leave (as was the case here). Unfortunately however, we need an appeal court to provide the clarity that employers need.