In the recent decision of Ali v Capita Customer Management Limited 1800990/2016 ET, the Claimant was successful in bringing claims of Sex Discrimination and Victimisation against Capita Customer Management Limited, the Respondent.
This case was heard by a Tribunal in Leeds, England. Whilst it is not legally binding in the NI jurisdiction, it does provide useful legal guidance to employers in respect of individuals who have recently became fathers in the workplace.
Mr Ali had worked for the Respondent for four years, following a TUPE transfer from Telefonica in 2013. His wife gave birth to their daughter on 05.02.2016, two weeks early and Mr Ali was off for a total off three weeks following her birth. The latter week was taken as annual leave, the first two weeks as paternity leave.
Mr Ali’s wife was unfortunately diagnosed with postnatal depression. She was “advised to return to work to assist her recovery.” Due to these circumstances, Mr Ali wanted to take the “remaining maternity leave and pay entitlement” himself. Thus allowing his wife to return to work and him to care for their new-born daughter.
Under the Respondent’s maternity pay policy, the best entitlement, subject to length of service, is “14 weeks company maternity pay followed by 25 weeks lower rate statutory maternity pay.” The Respondent, as a male, was entitled to paternity leave of two weeks at full pay, and not the further 12 weeks at full pay. This was the contentious issue in the matter.
When Mr Ali informed his team leader about his wife’s condition and his desire to take time off, he was informed that he was eligible for Shared Paternal Leave but he would only receive statutory pay. He later discovered how his female co-workers would receive full pay for the first 14 weeks after the baby was born. The Tribunal was mindful of the current UK political climate and noted that recent changes in Shared Parental Leave was a “deliberate change in policy by the government to encourage more flexibility and for fathers to take a greater role and be able to move away from outdated and stereotypical assumptions about which parent should care for the baby in the first year.”
A new mother cannot waive her two weeks leave immediately after the birth of her child as this is “compulsory maternity leave.” Mr Ali however did not argue this was sex discrimination as women are in a different situation due to their “biological/physiological condition” then men. It is after these two weeks that he alleged sex discrimination, as his female comparators were entitled to full pay for the next 12 weeks, whereas he was only entitled to the statutory pay under the Policy.
Mr Ali’s union was involved and they issued a grievance which led to a lengthy process with no real solution as the outcome letter “fails to address the complaint made of sex discrimination.” The Tribunal found that the Respondent failed to consider the grievance correctly; they did not consult the Telefonica policies, the manager’s guide was not referred to and neither was their own equal opportunity policy. The Tribunal found that the sex discrimination complaint wasinadequately dealt withand thus concluded that Mr Ali was, in the following 12 week period; “denied the benefit of full pay, which would have been given to a hypothetical female transferred Telefonica employee, caring for her child.”
The Tribunal highlighted how it is mainly women that carry out the primary caregiving role but noted that; “maternity leave and maternity pay are also provided in order to “facilitate the care of a child in its first year of life” and that need or consideration is not exclusive to women who have recently given birth.” It is circumstantial with regards to who looks after the child and in Mr Ali’s position, with his wife’s diagnosis, it suited him to do it.
Mr Ali also succeeded with the majority of his victimisation complaints, that he was less favourably treated for lodging a grievance on the matters above. The Tribunal found he was “misled [by the Respondent] into believing he was returning to the BRT role and then provided with a false reason for his removal.” Furthermore, on 21.12.2016 the Respondent “misunderstood the dependant’s leave policy and treated it as if it was sick leave and was applying triggers for disciplinary action when this was not the correct procedure.”
Niall McMullan is an Associate Partner in the Employment Law department of Worthingtons solicitors and can be contacted on 02890434015.