Summary: Is it direct sex discrimination not to pay full salary to a father taking shared parental leave, in circumstances where a mother taking maternity leave during the same period would have received full pay?
Yes, says the Tribunal in Ali v Capita Customer Management Ltd, available here.
Facts: The Employer, Capita Customer Management (“Capita”) had various policies about pay for different types of family leave. Employees taking maternity leave were entitled to 14 weeks of full basic pay, followed by 25 weeks of statutory pay. Employees taking two weeks of ordinary paternity pay were entitled to full pay for that period, but there was no right to any additional pay above the statutory rate for SPL.
The employee, Mr Ali, took two weeks of paternity leave immediately after the birth of his baby. His wife was unwell with post-natal depression and had been advised to return to work, so Mr Ali asked to take SPL so that he could care for the baby. He was aware that female employees on maternity leave from Capita were entitled to 14 weeks at full pay and asked for the same treatment. When this was refused, Mr Ali submitted a grievance alleging sex discrimination. When this was not upheld, he brought various claims in the Tribunal. His main contention was that it was direct sex discrimination to provide full pay to mothers on maternity leave but not to fathers on SPL.
The Tribunal decided that this treatment of Mr Ali did amount to direct sex discrimination.
It was accepted by both sides that the initial compulsory maternity leave period of two weeks was specifically associated with recovery after childbirth, and so was unique to the mother. The Tribunal considered, however, that after this two-week period, Mr Ali could compare his treatment with that of a hypothetical female colleague on maternity leave. She would be entitled to full pay for 14 weeks, while he was only entitled to statutory pay. This was direct sex discrimination.
The Tribunal rejected Capita’s argument that the full 14 weeks of maternity leave were special treatment in connection with childbirth, which is an exception to sex discrimination under the Equality Act 2010. The Tribunal did not accept that this exclusivity should continue after the initial two weeks as there should be a valid choice available to parents as to who should undertake the childcare role and equality of treatment required the same pay for carrying out the same role.
Implications: Although this is not a helpful decision for employers, it is important to note that this is only a Tribunal level decision and so not binding in other cases. It also contrasts with other Tribunal decisions on this issue which have found that it is not discriminatory to pay SPL at a different rate to maternity leave. As it is likely that this decision will be appealed, we look forward to receiving a binding decision from the EAT on this issue.
While we await clarity from the EAT, if a request does arise from a man asking for an enhanced level of pay to match maternity pay we recommend that employers consider individual circumstances and take advice from the Menzies Law team on 0117 325 0526.