Successful direct sex discrimination claim over shared parental pay

A father has won a direct sex discrimination claim for failure to pay enhanced shared parental pay in circumstances where female employees were entitled to enhanced maternity pay.

Background

Shared Parental Leave and pay

Shared parental leave allows parents to share up to 50 weeks of leave (woman are required to take at least 2 weeks compulsory maternity leave immediately following the birth).

Shared parental pay allows parents (including adoptive parents) to share up to 37 weeks of pay the mother would otherwise be entitled to as her maternity pay.

Discrimination

Direct sex discrimination is where a person (X) treats another (Y) less favourably that X treats or would treats others, because of their sex. No account is taken for special treatment of women connected to pregnancy or childbirth.  Therefore a man cannot bring a claim for sex discrimination for special treatment afforded to a woman while pregnant or during childbirth.

Ali v Capita Customer Management Ltd ET/1800990/16

Mr Ali was original employed by Telefonica until his employment transferred under TUPE to Capita.  Telefonica’s policies transferred with him. Under Telefonica’s maternity policy, female employees were titled to enhanced maternity pay, being 12 weeks enhanced maternity pay then 25 weeks statutory maternity pay. Fathers were entitled to two weeks full pay.

Mr Ali took two weeks paid leave when his daughter was born. Mr Ali’s wife was suffering with Post Natal Depression and was advised by her doctor to return to work. Mr Ali therefore wished to take on the care of his daughter. Mr Ali was informed by Capita that he was entitled to shared parental leave, but was only entitled to statutory shared parental pay.

Mr Ali brought a claim in the employment tribunal for direct sex discrimination, arguing that shared parental leave allowed parents to choose which one took leave to care for a child, and that it was direct sex discrimination to pay a woman more whilst taking the leave than a man for taking the leave. Mr Ali argued that the choice as to which parent took the leave had effectively been taken away from him; he argued that after the two weeks compulsory maternity leave, male employees should be entitled to the same right to leave on enhanced pay as female employees.

The employment tribunal upheld Mr Ali’s claim, deciding that:

• Mr Ali was entitled to compare himself with a hypothetical female employee taking leave to care for a child after the two week compulsory maternity leave period;
• Failing to pay full pay amounted to less favourable treatment because Mr Ali was a man; and
• Mr Ali was not prevented from comparing himself with a hypothetical female employee. The child-caring role was not just the role of a mother.

The tribunal distinguished the care of new-borns from pregnancy and childbirth. After the two week compulsory maternity leave period, the position for men and woman when it comes to care is the same. Parents should be able to choose who takes on the greater care role free of any assumption that the mother is the best person to do it and therefore should receive higher pay because of this assumption.

This case questions whether an employer’s policy is discriminatory where it offers enhanced maternity pay but only statutory shared parental leave.

Employers should however be aware that this case does not provide a binding authority requiring employers to pay enhanced shared parental pay if they offer enhanced maternity pay. The decision is currently being appealed and hopefully this will provide some certainty in this area for both employers and employees.

If you require any further advice or assistance on shared parental rights, other family friendly rights or any other Employment law matter, please contact the Chattertons Employment law team.