Should a male employee who takes shared parental leave be entitled to full pay where a female colleague receives full pay for the same period under an enhanced maternity pay scheme?
Ali v Capita Customer Management Ltd
Mr Ali’s daughter was born on 5 February 2016. She was born 2 weeks prematurely but Mr Ali was able to take his 2 weeks paternity leave immediately. During his paternity leave he informed his line manager that his wife had been diagnosed with postnatal depression. Following a further week of previously requested annual leave, Mr Ali returned to work. He was concerned about the health and well-being of his wife and daughter and wanted to take further leave. His wife had been medically advised to return to work to assist in her recovery. Capita informed Mr Ali that he was entitled to shared parental leave but would only be entitled to statutory pay. At the same time, a female colleague was due to give birth and take maternity leave. Mr Ali discussed this with her and she confirmed that she was entitled to 14 weeks full pay under an enhanced maternity scheme.
Mr Ali complained that as a male employee he was entitled to 2 weeks’ pay whereas his female comparator was entitled to 14. He argued that after the 2 weeks compulsory maternity leave either parent could care for the baby depending on the choices made by the parents in the circumstances and the position that he was not entitled to the same pay as a woman performing the same role, took away the choice he and his wife wanted to make as parents and deterred him from taking leave.
Following his decision not to take leave for financial reasons, Mr Ali raised a grievance, alleging sex discrimination, and was then absent from work from April 2016 to July 2016 with work-related stress. He discussed the grievance and his treatment at work with his line manager on numerous occasions. Mr Ali was told during these meetings that if he did not return to work he would be removed from his current role and demoted. Mr Ali felt pressurised to return to work and did so. On his return his line manager told Mr Ali that she had managed to secure his existing role; however, he was later informed by the same line manager that he would in fact be demoted. The line manager set out that this was due to performance however, it came to light that the decision was made when two other long term sick employees returned and it was all about timing i.e. whoever returned to work last would be demoted and moved to another team.
Mr Ali brought claims for sex discrimination and victimisation, arguing that the treatment meted out to him regarding his absence was because of his complaint about sex discrimination.
The Employment Tribunal found in Mr Ali’s favour, both in relation to direct sex discrimination and victimisation. It accepted that Mr Ali was denied the same benefit as a female employee and was deterred from taking leave due to pay. He was treated less favourably and the reason for this was his sex.
The tribunal set out that maternity leave and maternity pay are provided in order to “facilitate the care of a child in its first year of life” and that this is not exclusive to women. Therefore, Mr Ali should have received full pay for the further 12 weeks to mirror the enhanced maternity scheme.
The tribunal concluded that in modern times men are being encouraged to play a greater role in caring for their babies. It set out that this was not a case about denying full pay to women but that it was about equality and treatment in relation to pay for the father to access the same benefits for performing the same caring role that was not exclusive to the mother.
This decision has since been overturned.
The EAT found the employment tribunal had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a woman who had recently given birth as both had leave to care for their child. The EAT said the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”. It therefore ruled that it is not discriminatory to refuse a new father enhanced pay while on shared parental leave where women are given enhanced maternity pay.
For those who are unfamiliar with shared parental leave, you can read our previous alert dated 5 April 2015.
When shared parental leave became available to parents, many employers with enhanced maternity schemes queried whether they would have to enhance shared parental pay to avoid sex discrimination claims. This case indicates that paying enhanced maternity pay to women but only offering statutory shared parental pay to men amounts to sex discrimination.
It is understood that Capita intends to appeal against the decision. Employers should bear in mind that, as an employment tribunal decision, it isn’t binding on other employment tribunals but subject to the outcome of any appeal will be persuasive.
If you would like any advice in relation to Shared Parental Leave or discrimination or have any other employment law or HR queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.