The shared parental leave has had a very low uptake on a national scale. However, the question arose in the case of Capita Customer Management Ltd v Ali whether failing to pay enhanced shared parental leave, in line with a company’s enhanced maternity pay amounted to direct sex discrimination.
On first glance, you might say well yes, of course it is. You may be surprised to read that this is not how the Employment Appeal Tribunal (EAT) saw it.
Following a TUPE transfer, female employees were entitled to maternity pay of 14 weeks basic pay followed by 25 weeks of Statutory Maternity Pay (SMP).
By comparison, male employees were entitled to 2 weeks paid ordinary paternity leave and up to 26 weeks additional paternity leave which ‘may or may not be paid’.
Mr Ali’s daughter was born and he duly took two weeks paid paternity leave. Following which, he made enquiries with his employer about taking shared parental leave. The response was that he could but would only be paid statutory shared parental leave pay, not the enhanced maternity pay that it gave to mothers.
Dissatisfied with the response from his employer, Mr Ali raised a grievance alleging direct discrimination. His grievance was not upheld and so he progressed his complaint to an employment tribunal (ET).
Mr Ali levelled a claim for direct sex discrimination, amongst other things. The basis of his claim was that his employer should pay an enhanced shared parental leave, in line with its policy of paying enhanced maternity pay.
It was accepted that there was a material difference for the first two weeks of compulsory maternity leave that women must take following child birth.
Mr Ali argued that he should receive an enhanced shared parental leave, equivalent to what a woman would have received for the same period for her enhanced maternity pay. Mr Ali asserted that by not doing so constituted less favourable treatment because of his sex.
The ET agreed with Mr Ali. In doing so the ET considered that it was irrelevant that he had not given birth.
The ET went on to state that after the two weeks compulsory maternity leave the purpose of maternity leave/pay was to care for the child. Subsequently, the Equality Act 2010’s special treatment for women in connection with pregnancy or child birth did not apply to the period after his.
Finally, the ET acknowledged that men are being encouraged to take greater care of their children in the early stages. This shift is to promote greater equality for child care and avoid the stereotypical assumption that the mother is the primary care giver.
Capita Customer Management (CCM) were not satisfied with this result and so appealed.
The Employment Appeal Tribunal
The Employment Appeal Tribunal (EAT) overturned the ET’s decision and agreed with CCM that the failure to pay enhanced shared parental leave was not discriminatory.
The EAT concluded that the purpose of maternity leave and therefore pay is to protect the health and wellbeing of women only during pregnancy and immediately following childbirth. The level of pay was therefore linked to that purpose and enjoyed the protection of special treatment under the Equality Act 2010. Mr Ali’s decision was therefore not comparable to that of a woman who had just given birth.
It was recognised that shared parental leave does have the purpose of child care and so is different to maternity leave/pay.
The above case is helpful for companies in avoiding claims of discrimination where policies allow for enhanced maternity pay, but this is not reflect in the shared parental leave policy.
We consider that it is perhaps a shame that the shift in views of child care was not given greater weight. However, one cannot overlook the physical consequences of childbirth. Ultimately, the health and well being of employees must come first.
If you have read this article and realised you don’t have any such policies or that they are out of date, please do feel free to contact us.