Shared parental pay: father wins sex discrimination case

Stock photo: Mint Images/REX/Shutterstock

A father whose wife was advised to return to work to combat post-natal depression has won a sex discrimination claim after his employer told him that he would be paid full pay for only two weeks’ paternity leave.

Mr Ali was a former Telefonica employee who transferred to Capita. When Telefonica employees transferred, Telefonica’s policies transferred with them.

Under the maternity policy, female employees taking maternity leave are entitled to enhanced maternity pay.

The policy gives female employees with 26 weeks’ service the option of 14 weeks’ enhanced maternity pay, followed by 25 weeks at the rate of statutory maternity pay.

Under the Telefonica policies, new fathers are entitled to two weeks on full pay, during their paternity leave.

When Mr Ali’s wife gave birth, she was diagnosed with post-natal depression. Medical advice was that returning to work would assist her recovery.

Mr Ali was able to take fully paid paternity leave for the first two weeks following the birth of his child, followed by a number of weeks’ annual leave.

On his return to work, HR advised that he was entitled to shared parental leave. However, he was told that he would be entitled to statutory shared parental pay only. Mr Ali claimed direct sex discrimination in an employment tribunal.

While accepting that two weeks’ maternity leave is compulsory for new mothers, Mr Ali argued that, for the next 12 weeks, male employees should be given the same right to leave on enhanced pay as female employees.

Mr Ali argued that the employer’s policy assumes that a man caring for his baby is not entitled to the same pay as a woman performing that role, taking away the choice that he and his wife wanted to make for their baby.

According to Mr Ali, this was not a valid assumption to make in 2016.

The employment tribunal upheld Mr Ali’s sex discrimination complaint in Ali v Capita Customer Management Ltd. It accepted that men are being encouraged to play a greater role in caring for their babies.

The employment tribunal believed that the role of primary carer is a matter of choice for the parents, but that the choice should be free of “generalised assumptions” that the mother is always best placed to undertake the primary role and should get full pay.

According to the tribunal, in this case Mr Ali was best placed to perform that role, given his wife’s post-natal depression.

The decision is thought to be only the third case on the enhancement of shared parental pay, following a successful claim against Network Rail and an unsuccessful claim against Leicestershire Police (see below).

It has been reported that Capita will appeal the decision.

Stephen Simpson, principal employment law editor at XpertHR said: “When shared parental leave was introduced, by far the most common query we received from employers was whether or not they needed to enhance shared parental pay if they already enhanced maternity pay.

“Employers should remember that all the decisions so far have been at first instance. There is no binding case law that specifically requires employers to enhance shared parental pay if they enhance maternity pay, and it’s not required by legislation either.

“The sooner an appeal court or tribunal sorts out this area of uncertainty for employers, the better.”

According to XpertHR research in May 2016, around a quarter (24.7%) of employers surveyed enhanced, or planned to enhance, shared parental pay – usually to match their arrangements for enhanced maternity pay.

However, more than half (54.1%) of respondents with a policy to enhance maternity pay, said they did not enhance shared parental pay.

Read more details of the employment tribunal decision in Ali v Capita Customer Management Ltd and practical tips for employers.

Shared parental pay: previous cases

In Hextall v Chief Constable of Leicestershire Police, an employment tribunal held that a police force’s policy of giving a period of full pay to mothers on maternity leave, but paying only statutory shared parental pay to partners, is not discriminatory.

In Snell v Network Rail, the employer conceded that its policy of giving a period of full pay to mothers on shared parental leave, but paying only statutory shared parental pay to partners amounted to indirect sex discrimination against men. The employment tribunal awarded £28,321 for indirect sex discrimination to the claimant.

4 Responses to Shared parental pay: father wins sex discrimination case

  1. Avatar
    Jodie 7 Jun 2017 at 6:09 pm #

    I actually represented Mr Ali in the beginning including the preliminary hearing. I agree that this is certainly an unclear area with no binding legislation with only 1 other case in favour of his position at the ET. It will be interesting to see if employers take note and amend their policies accordingly.

  2. Avatar
    Currer bell 9 Jun 2017 at 9:30 am #

    Well done to mr Ali for raising his concerns with his (CWU) representative which the ET recognised and referred to in the judgement. Laws are passed to ensure fairness and shared parental means shared. Appalling to be treated by his managers who are women! Equality is there for everyone which means everyone. Refreshing to see a decision made on fairness and consideration to his wife’s health which was all this employee wanted.

  3. Avatar
    Joe 9 Jun 2017 at 11:49 am #

    I think this is a good thing and progressive in 2017! However, I’m a little confused by the rationale for the ruling. It is not just males who are partners of birth parents. Female partners also do not give birth, but are entitled to shared parental leave. With the introduction of grandparents (male or female) into shared parental leave, are we now saying that the ‘lead carer’ for a child has a right to any enhanced pay traditionally offered as Maternity Pay? Would it be age discrimination to not allow a grandparent to have enhanced pay. My concern is that if this is the case or even if employers are forced to match maternity pay enhancement for Shared Parental Pay for partners, that we may see a reduction in the offer of this enhanced pay.

  4. Avatar
    Rob McCreath 14 Jun 2017 at 9:55 am #

    Very interesting – but employers should not assume that this decision will be followed by other Tribunals.

    The key issue is whether maternity pay beyond 2 weeks is “special treatment afforded to a woman in connection with pregnancy or childbirth”. If it is, a man cannot base a discrimination claim on it (s13(6)(b) Equality Act 2010).

    If, as decided in this case, it is not – because it is found to be merely in connection with caring for a child (which can be done by either parent), the door is open for men to claim that shared parental pay should mirror maternity pay. This would be likely to make a big difference to the take-up of shared parental leave.

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