5th July 2017

Father wins direct sex discrimination claim for failure to pay enhanced shared parental pay

This case considers sex discrimination and pay during shared parental leave.  Shared parental leave was introduced in 5 April 2015.  It allows a woman who is on maternity leave to give up her maternity leave and instead allow a partner/father to take the remaining amount of leave – known as Shared Parental Leave.  It is aimed at allowing women and their partners to share the care of the new born baby, except for the first two weeks which is compulsory maternity leave for the mother.

Statutory Maternity Pay is the statutory rate of pay during maternity leave. Share Parental Pay is the statutory rate of pay during shared parental leave. Some employers pay above the statutory rate for maternity leave, and likewise during the new shared parental leave.

In this case, Mr Ali’s employer, Capita Customer Management Limited, only paid statutory shared parental pay but enhanced maternity pay.

Mr Ali complained that since the female employees were entitled to maternity pay at an enhanced rate of pay, he was being treated unfavourably by only being paid the basic statutory pay for his shared parental leave.

Traditionally, the argument has been that maternity leave and maternity pay are special treatment afforded to women in connection with pregnancy. It stems from the EU Directive which states a minimum amount of leave should be given to women who have given birth.  Fathers, like Mr Ali, could not compare themselves to mothers on maternity leave. Instead it could be argued that they can potentially compare themselves to a mother on shared parental leave, which is open to both men and women provided the mother gives up her maternity leave.

However, in the case of Mr Ali the tribunal decided to contradict recent tribunal decisions and took a different view.

The tribunal found that Mr Ali could compare himself with a hypothetical female colleague – that is a colleague that took leave to care for her child after the 2 week compulsory maternity leave period.

Mr Ali was not being paid the enhanced pay which was discriminatory treatment compared to a female colleague because the reason for this difference in treatment was because Mr Ali was a man.

It was argued that the Equality Act did not prevent Mr Ali from comparing himself with a female colleague as the role he wanted to perform was not a role exclusive to the mother i.e. caring for his baby.  The enhanced maternity pay given to female colleagues was not special treatment just for pregnancy and childbirth, but also to allow a mother to care for her baby, which is what Mr Ali wanted to do.  Mr Ali therefore succeeded with his sex discrimination claim.

Bearing in mind there are contradicting tribunal decisions on this topic, we await a decision from a higher tribunal or court before this case can be relied upon. However, it raises interesting questions with regard to the purpose of maternity leave compared to the purpose of share parental leave.

If you would like some advice on any employment law topic, please contact us 01730 268211 or linda.wilson@macdonaldoates.co.uk

N.B. Please note that the above information is a guide only and does not constitute legal advice. We recommend seeking specialist legal advice on your own particular circumstances