Shared parental leave
Natalie Ruane reports on a recent case on shared parental leave: Ali v Capita Customer Management Ltd.
Mr Ali was an employee of Capita Customer Management. In July 2013, his employment had transferred to Capita via TUPE.
Mr Ali had 12 years’ service as an employee.
On 5 February 2016, Mr Ali’s daughter was born two weeks prematurely and he took paternity leave immediately following her birth. During that leave, Mr Ali informed his manager that his wife had been diagnosed with post-natal depression and took a further week off work as paid annual leave.
On 7 March 2016 he returned to work, but was concerned about his wife and baby as his wife had been medically advised to return to work to assist with her recovery.
On 9 March 2016, Mr Ali was told he was eligible for shared parental leave but would only be entitled to statutory pay.
Mr Ali complained that as a male employee he was entitled to only two weeks paid leave following the birth of his child in April 2016, whereas a female employee would be entitled to 14 weeks’ full pay. He did accept that there is a material difference in circumstances e.g. relating to the biological condition and recovery following childbirth for the first two weeks.
- Mr Ali’s complaint was that in the following 12 weeks he was discouraged from taking leave. He was told that as the father he would only receive statutory pay and not full pay for the leave.
- Mr Ali argued that after the two weeks compulsory leave, either parent could care for the child depending on the particular circumstances.
- As a man caring for his child, he was not entitled to the same pay as that of a woman, it was argued that Mr Ali was directly discriminated against on the grounds of sex.
Capita argued that:
- The comparison made is invalid because Mr Ali had not given birth – the law entitles only female employees the necessary right to maternity leave because of the special considerations which stem from biology.
- The Equality Act 2010 provides that Mr Ali cannot take any account of the special treatment afforded to women in connection with pregnancy/childbirth.
- Although Mr Ali argued that he was discouraged from applying for leave, in the end he did not apply. He could not say that he was in fact treated less favourably than his hypothetical comparator because he did not take the leave.
Entitlement to pay for maternity and paternity leave was contained in the relevant policy. The policy provided for three options for maternity pay of up to 39 weeks. As Mr Ali had more than 26 weeks service he would have been entitled to receive the most favourable of the three options: 14 weeks full company maternity pay followed by 25 weeks lower rate statutory maternity pay.
After realising that a female employee was entitled to 14 weeks full paid maternity leave, Mr Ali raised his concerns with his union who set out the complaint of sex discrimination. An official grievance was raised by email on 5 April 2016 alleging sex discrimination, which stated:
‘I find it unfair that the company only pays statutory pay for shared paternal leave and gives enhanced maternity pay to the female member of staff when she is on maternity leave. I find this to be discrimination against me as I am a male and don’t get the same treatment as a female’.
What followed was a long grievance process which resulted in a very short outcome letter which failed to address the sex discrimination complaint.
The Sex Discrimination Complaint
Mr Ali accepted that for the two weeks immediately after birth he could not compare himself to the female who had given birth. That time is specifically associated with recovery after childbirth, a condition unique to women.
In the subsequent 12 weeks, however, he was denied the benefit of full pay which would have been given to a hypothetical female caring for her child. Mr Ali could compare himself to the hypothetical female for the subsequent 12 weeks even though he had not given birth.
The tribunal highlighted that in 2017, men are encouraged to play a greater role in caring for their babies and that caring roles are not exclusive to the mother. The choice made should be free of generalised assumptions that the mother is always best placed to undertake that role. In these circumstances, Mr Ali was best placed to perform that role given his wife’s post-natal depression. Capitia knew of these circumstances and that medical advice encouraged the mother to return to work.
Mr Ali successfully claimed sex discrimination by reference to the more favourable treatment that would have been given to his female colleague. The reason why he was treated less favourably was because of his sex.
It is highly likely that this case will be appealed and if it is not then it has persuasive impact only on subsequent tribunal cases. If appealed and upheld it will have a major impact on how employers treat their employees on maternity and shared parental leave as it will then be legally binding.
An earlier first instance tribunal case, Hextall v The Chief Constable of Leicester Police, found that it was not discriminatory when female employees received 18 weeks full pay as a male employee could not compare himself to the female employee on maternity leave but the correct comparator was actually a female employee on shared parental leave too who would receive the same pay as the male employee on shared parental leave.
At this stage, employers would be well advised to wait for further guidance from the EAT before amending their Shared Parental Leave and/or Maternity policies, particularly given earlier conflicting tribunal decisions. In the longer term, if the approach in Ali is upheld, it may be necessary to consider equalising Maternity and Shared Parental Leave policies.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.