Failure to pay father enhanced Shared Parental Pay was not discrimination

10 May 2018

The EAT in Capita Customer Management Ltd –v- Ali [2018] decided that the employer had not discriminated against a male employee, Mr Ali, by paying him at its Shared Parental Leave (SPL) rate of pay, which was less than what female employees on maternity leave were paid during the same time period.

Failure to pay father enhanced Shared Parental Pay was not discrimination

In this case, the employer Capita Customer Management had various policies regarding pay for different types of family leave. Women are entitled to 14 weeks full basic pay whilst on maternity leave, followed by 25 weeks of statutory pay. Whereas, employees taking 2 weeks of ordinary paternity pay were entitled to full pay for that period but were not entitled to any additional pay above the statutory rate for Shared Parental Leave.

Mr Ali’s wife had been unwell following the birth of her child and suffered from post-natal depression. Following medical advice that she should return to work, Mr Ali requested 2 weeks paternity leave, as per his company’s policy, to allow him to care for the baby. Mr Ali was aware that female colleagues on maternity leave were entitled to 14 weeks at full pay and asked for the same treatment. Capita refused to grant him the same entitlement and Mr Ali subsequently submitted a grievance alleging sex discrimination. His grievance was not upheld and Mr Ali subsequently brought claims to an employment tribunal alleging that Capita had directly discriminated against him on the grounds of his sex.

The Tribunal decided that the failure of Capita to provide full pay to mothers on maternity leave but not to fathers on Shared Parental Leave amounted to direct sex discrimination. Both sides accepted that the initial compulsory maternity leave period of 2 weeks was specifically associated with physical and mental recovery after childbirth, and as such, was unique to the mother of the child. However, the Tribunal considered that after this 2 week period, Mr Ali could compare his treatment with that of a hypothetical female employee on maternity leave.

The matter was subsequently heard, on appeal, by the Employment Appeal Tribunal (EAT). The EAT overturned the earlier decision of the Tribunal, finding that it had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a woman who had recently given birth as both had leave to care for their child. In doing so, the Court held that maternity leave has a different and distinct purpose from Shared Parental Leave in that it is for the health and wellbeing of the mother, whereas SPL is primarily to care for the child.

The EAT’s decision was influenced by the European Pregnancy Workers Directive, which requires member states to introduce legislation to allow women to take maternity leave with adequate pay for a minimum of 14 weeks. In considering the impact of the Directive, the Court determined that the primary purpose of maternity leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.

The EAT therefore held that the rate of maternity pay was inextricably linked to the unique purpose and circumstances of maternity leave and as such, it was not discriminatory for an employer to pay a female employee enhanced maternity pay but not SPL.

Maxine Orr is a partner in Worthingtons Commercial Solicitors specialising in employment law. She can be contacted on 028 9043 4015.

Newsletter Signup