Consultant editor Darren Newman asks if an employment tribunal was correct to hold that it was direct sex discrimination for a new father to be allowed to take only two weeks’ leave on full pay, when female staff were entitled to 14 weeks’ enhanced maternity pay.
Is not enhancing shared parental pay sex discrimination?
We need to be clear at the outset that the “problem” of sex discrimination in the workplace is essentially the problem of employers discriminating against women.
This is especially true around the issue of pregnancy and maternity where there is a wealth of evidence showing the career disadvantages suffered by women who take maternity leave.
We need to bear this in mind when looking at the case of Ali v Capita Customer Management, in which a male employee claimed direct sex discrimination because his employer refused to match the enhanced maternity pay given to women when he wanted to take shared parental leave. The case is important because, if the decision is upheld, it will have a profound effect on how employers approach maternity and shared parental leave.
Mr Ali’s wife had post-natal depression and had been advised to return to work in order to aid her recovery. He therefore wanted to take shared parental leave at the earliest possible opportunity. His employer’s policy was to pay women who took maternity leave their full salary for 14 weeks, after which they continued on statutory maternity pay for 25 weeks.
The employer in Mr Ali’s case would have treated the female partner of a woman who had given birth in exactly the same way. Sex was simply not the reason that Mr Ali’s request for enhanced pay was turned down”
For shared parental leave, however, the employer offered only the statutory minimum rate of pay. That meant that, once Mr Ali had taken two weeks of paternity leave (which was fully paid), any further leave he took would involve a substantial reduction in pay. He claimed that refusing to pay him the same as a mother taking maternity leave was direct sex discrimination – and the employment tribunal agreed.
Will that finding be upheld on appeal? My view is that this is unlikely, because of two main problems with the tribunal’s decision. First, it does not seem to me that sex was the reason that Mr Ali was denied fully paid leave.