Father directly discriminated against by employer’s shared parental pay policy

man-vs-woman

You may have heard about the recent case of Ali v Capita Customer Management Limited – a case which found that a new father had been directly discriminated against because of his sex.

This case is interesting, as it concerns the enhancement of shared parental pay and is only one of a small handful of cases on this topic.

Background

  • Mr Ali took two weeks paternity leave immediately after the birth of his baby.
  • During his paternity leave, Mr Ali’s wife was diagnosed with post-natal depression and was medically advised to go back to work, as this would assist her recovery.
  • In view of this, Mr Ali opted to take shared parental leave so he could care for his new baby in place of his wife.
  • However, Capita informed him that whilst taking shared parental leave was possible, he would only receive statutory pay (£138.18 p/w).

At Capita, female employees were entitled to enhanced maternity pay for 14 weeks, followed by 25 weeks statutory maternity pay. On that basis, Mr Ali claimed direct sex discrimination and victimisation as he was not being given the same benefit.

Mr Ali argued that males should be given the same right to enhanced pay and that by being denied this benefit, he was being deterred from taking shared parental leave. By having equal pay, either parent could care for their baby depending on the choices made by the parents and their specific circumstances.

Decision

The tribunal agreed that the treatment of Mr Ali did amount to direct sex discrimination. It added that Mr Ali was deterred from taking the greater role in caring for his baby because of the unequal pay and that parents should be able to make a choice free of ‘generalised assumptions’ that the mother is always best placed to undertake the greater role in caring for babies.

The Tribunal’s decision is at ‘first instance’ and is therefore not binding on other cases. (However, it is persuasive). It has been reported that Capita will appeal the decision; so watch this space.

In the meantime, if you have any questions or queries about shared parental leave, maternity rights and/or discrimination, or should you have concerns that your own policies and procedures may be viewed as discriminatory, please contact a member of our Employment Law team.

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