The Employment Appeals Tribunal (“EAT”) determined that a father who requested shared parental leave was not entitled to be paid at the same enhanced rate which the employer offered to employees on maternity leave.

Background

Mr Ali wished to take shared parental leave so he could care for his new-born child. His wife (who had been diagnosed with post natal depression) had been medically advised to return to work to assist her recovery. Mr Ali was entitled to take shared parental leave but was only entitled to shared parental pay at the statutory rate.

At his place of work, female employees were entitled to enhanced maternity pay (comprising 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay (SMP)).

Mr Ali asserted he should receive the same entitlement as a female employee who takes maternity leave and issued proceedings in an employment tribunal (ET) alleging indirect and direct sex discrimination.

Whilst the claim for indirect discrimination failed, the claim for direct discrimination succeeded on the basis the ET considered Mr Ali could compare himself with a hypothetical female employee taking leave to care for her child after the two-week compulsory maternity leave period.  The ET also concluded they could not see why any preferential treatment for women should apply beyond the two-week compulsory maternity leave period.

Capita appealed to the EAT.

The Decision

The EAT upheld Capita’s appeal. It determined that maternity leave and pay is for health and well-being of the mother. By contrast, the purpose or reason for shared parental leave is for the care of the beneficiaries’ child.

In considering direct discrimination, the correct comparator in Mr Ali’s case was a woman who also sought to take shared parental leave not one who took maternity leave. On the basis that the correct comparator would have been given shared parental leave on the same terms, the conclusion was that there was no discrimination on the ground of sex. In any event, the ET should have found that the more favourable treatment given to women on maternity leave was rendered lawful by section 13(6) (b) of the Equality Act 2010 (which says that a man cannot claim that he has suffered sex discrimination because he has not been afforded the same special treatment as a woman in connection with pregnancy or childbirth).

Comment

The issue being disputed in this case was that of direct discrimination. However, in another recent decision (Hextall v Chief Constable of Leicestershire Police) the EAT found an employer’s policy of enhancing maternity pay for the first 18 weeks whilst only paying Shared Parental Leave at statutory rates could amount to indirect discrimination. Therefore, employers should take care when drafting family policies and seek advice.

Whilst employers with enhanced maternity packages will not be obliged to match those benefits for anyone taking shared parental leave for the time being, the practice could leave organisations exposed to indirect discrimination claims if any disparity in treatment cannot be justified.

If you would like assistance in drafting or implementing Family policies please contact Jade Linton on 0121 796 4024 or email jlinton@thursfields.co.uk

Capita Customer Management Ltd v Ali and another UKEAT/0161/17

Hextall v Chief Constable of Leicestershire Police EAT 0139/17/DA

 

Thursfields expert Solicitors are available at any of our offices and surrounding areas – Birmingham, Worcester, Kidderminster, Solihull, Halesowen, Sedgley and Stourport.

 

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