Failure to enhance pay for man seeking shared parental leave was direct sex discrimination

A male employee has succeeded in his claim of direct sex discrimination after his employer refused to enhance his pay during shared parental leave.

Speedread 

An employer discriminated against a male employee when it refused to pay him during shared parental leave at the same rate as it would have paid a woman on maternity leave. It had treated him less favourably than a woman who took leave to care for a child and the reason for the less favourable treatment was his sex. Paying enhanced maternity pay (beyond the two week compulsory maternity leave period) did not amount to special treatment afforded to women in connection with pregnancy or childbirth which has to be ignored when determining whether a man has been discriminated against. Instead it was special treatment afforded in connection with caring for a new-born baby, a role which is not exclusive to mothers.

Facts

In Ali v Capita Customer Management, Capita enhanced maternity pay so that women on maternity leave received 14 weeks’ full pay, followed by 25 weeks’ basic rate Statutory Maternity Pay. When his daughter was born, Mr Ali took two weeks’ ordinary paternity leave and was paid full pay. His wife was diagnosed with post-natal depression and advised to return to work. Mr Ali wished to take further leave to look after his daughter. Capita told him he could take shared parental leave but they would only pay him the statutory rate of Shared Parental Pay. 

Mr Ali claimed sex discrimination, arguing that he should receive the same pay as a woman on maternity leave. 

Decision

The employment tribunal upheld his claim. Capita had treated him less favourably than a hypothetical female colleague who took leave to care for her child. The reason for the less favourable treatment was his sex. Whilst special treatment afforded to women in connection with pregnancy/childbirth has to be ignored when determining whether a man has been discriminated against, the maternity policy did not afford special treatment to women in connection with pregnancy/childbirth (except during the two week compulsory maternity leave period reserved exclusively to the mother to enable her to recover from childbirth). Instead, it afforded special treatment in connection with caring for a new-born baby, a role which is not exclusive to mothers. 

Implications

The decision in this case is not binding as it is only at employment tribunal level. It is at odds with Government Guidance, which indicates that employers will not discriminate if they enhance maternity pay but not shared parental pay. It is also at odds with the employment tribunal decision in the case of Hextall v Chief Constable of Leicestershire, where the tribunal ruled that a man on shared parental leave can only compare himself with a woman on shared parental leave, not a woman on maternity leave. On that basis there was no less favourable treatment as men and women on shared parental leave were paid the same. 

We understand that both decisions are being appealed to the Employment Appeal Tribunal (EAT). Employers who enhance maternity pay but not shared parental pay may wish to await clarification of the legal position from the EAT before deciding what changes, if any, they need to make to their policies.