EMPLOYMENT E-BULLETIN ARTICLE

clark heidi

An employment tribunal has held that it was direct sex discrimination to deny a father paid leave at the same level of its enhanced maternity pay. Heidi Clark, legal assistant, summarises the case and the points to take away from it.

Background

Shared Parental Leave (SPL) replaced additional paternity leave (APL) in April 2015, and although government guidance stated that there was no legal obligation to match enhanced rates of pay for parents taking SPL, concerns were raised that only offering statutory pay for men could potentially lead to discrimination claims.

An employment tribunal has held that it was direct sex discrimination to deny a father paid shared parental leave at the same level of its enhanced maternity pay. Heidi Clark summarises the case and the points to take away from it.

Case summary

In Ali v Capita Customer Management Ltd [2016], the claimant was TUPE transferred from Telephonica to Capita in 2013.

The claimant was taking his 2 week period of paternity leave when his wife was diagnosed with post-natal depression, and she was advised to return to work to aid her recovery. As a consequence of this, the claimant requested further leave to care for their baby. He was informed however that he would only be entitled to statutory pay under the Company's Shared Parental Leave Policy, which deterred the claimant from taking additional leave as it would put him and his family at a financial disadvantage.

As a result of this, the claimant raised a grievance stating that he should be entitled to receive the enhanced rate of pay that a female employee would receive on maternity leave for the purposes of caring for a baby. The claimant's grievance was not upheld, so he lodged a claim at the employment tribunal for indirect and direct sex discrimination.

The claim focussed on the 12 weeks after a female's 2 week 'compulsory maternity leave', as the claimant accepted that there was a material difference in circumstances for the first 2 weeks of that leave, because the mother requires a period of time to recover biologically following childbirth.

The tribunal allowed the claimant to compare himself hypothetically to that of a female colleague (following the mandatory 2 week maternity period). The view was taken that men and women are in the same position in relation to caring for newborns after the compulsory 2 week period, and therefore distinguished the provision of that care from being related to pregnancy and childbirth.

The claimant was successful in his claim for direct discrimination, with the tribunal adopting the view that the father in this particular case was deemed to be in the best position to care for the child, given the mother's post-natal depression. Although this factor may have played a part in the outcome of this particular case, the tribunal stated further that the primary role of carer for a child should not necessarily be exclusive to the mother, and it should be a choice between the parents when deciding who is best placed to care for the child.

It does however remain unclear whether direct discrimination would be found if, for example, a father was paid statutory ShPP during a period of leave that ran concurrently.

In relation to the claim for indirect discrimination, the claimant argued that the provision, criterion or practice (PCP) that placed males at a disadvantage was his employer's maternity policy, which the tribunal decided could not form the basis of a PCP as it was not gender neutral.

This case has unfortunately left us with conflicting tribunal decisions, as the earlier case of Hextall v Chief Constable of Leicestershire Police [2015] held that it was not discriminatory to pay statutory shared parental pay where the company offered enhanced maternity pay. The tribunal stated that the special treatment given to women (i.e. maternity leave and pay) was in connection with pregnancy and childbirth and therefore was not applicable to partners. The tribunal concluded that the correct comparator was a woman taking SPL, and consequently there was no less favourable treatment.

These two cases were first instance decisions, and are not binding on other tribunals. It has been reported that both are being appealed which will result in a binding EAT judgment, clarifying the position. If the EAT were to accept the reasoning in Ali that the correct comparator is a woman on maternity leave, and that SPL becomes detached from pregnancy and childbirth, then this would allow claimants to successfully claim direct discrimination in similar circumstances.

In the meantime, businesses that do not already offer enhanced ShPP may not want to alter their approach despite the risk of claims due to the uncertainty of the outcome of the decisions. It may not be a viable option for every business to offer an enhanced rate of ShPP, as the circumstances will be different to each business, and cost and employee relations may also be significant drivers.  Other businesses have already decided to offer enhanced ShPP seeing it as a benefit to retain and attract employees.

We will of course keep you updated with future developments; however should you wish to discuss this topic further and like assistance in the best approach for your business to take, please do not hesitate to contact your usual Foot Anstey contact.

Tags: Employment and Pensions2017