FAILURE TO PAY DAD PARENTAL PAY IS NOT SEX DISCRIMINATION
The Employment Appeal Tribunal (“EAT”) has found that failure to pay a male employee enhanced shared parental pay in circumstances where it did pay enhanced pay to women on maternity leave, was not direct sex discrimination.
In the case of Capita Customer Management Ltd v Ali and another UKEAT/0161/17, Mr Ali was employed by Capita Customer Management Ltd (Capita) following a TUPE transfer from Telefonica in 2013. Transferring female Telefonica employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ SMP. Transferring male Telefonica employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”. Mr Ali’s wife suffered postnatal depression and was advised to return to work. Mr Ali accordingly wished to take further leave to look after his daughter and asserted that he should receive the same entitlements as a Telefonica female employee taking maternity leave. Capita did not agree and Mr Ali consequently raised a claim in the Employment Tribunal for sex discrimination.
The EAT held that the purpose of shared parental leave is different to maternity leave. The primary purpose of law on maternity leave is the health and wellbeing of the pregnant and birth mother whereas in contrast, the law from which the rules of shared parental leave derive, focus on the care of the child and makes no provision for pay. A father taking shared parental leave was therefore not in a comparable situation to a mother taking maternity leave. The correct comparator would be a woman on shared parental leave, who would have been given shared parental leave and pay on the same terms as Mr Ali.
Niki Avraam, Employment Partner comments: Despite the decision reached by the EAT in this case, it is important to take note of the EAT’s comments that after 26 weeks, the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child, and it may at that point be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.
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