Shared parental leave was first introduced in April 2015, but there has been a relatively low uptake. Recent cases have caused confusion over whether shared parental pay should be matched to maternity pay to avoid discrimination.
On 11 April 2018 The Employment Appeal Tribunal (EAT) handed down a judgment in the case of Capita Customer Management Limited v Mr Ali, concluding that a failure to enhance shared parental pay to match maternity pay does not amount to sex discrimination. Employers can now breathe a sigh of relief that existing practices remain lawful.
Facts of the case
When Mr Ali’s daughter was born in 2016, he took two weeks’ paid paternity leave. He informed Capita that his wife had been diagnosed with post-natal depression and had been medically advised to return to work to assist her recovery. Mr Ali was informed by Capita that he could take shared parental leave but he would only be entitled to statutory pay. Mr Ali discussed this with his female colleagues who were entitled to an enhanced maternity pay scheme that entitled them to 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay. As a male employee, Mr Ali’s entitlement was two weeks’ paternity leave on full pay and up to 26 weeks’ additional paternity leave which “may or may not be paid”. On this basis, Mr Ali raised a grievance to say that it was discriminatory that men were paid statutory pay for shared parental leave whilst mothers on maternity leave received enhanced maternity pay. When his grievance was not supported, he pursued claims in the tribunal for sex discrimination.
First instance decision of the Tribunal
The first instance decision was discussed at our Annual Employment Law Update in September 2017. At that time the employment tribunal upheld Mr Ali’s complaint of direct sex discrimination. The Tribunal agreed that Mr Ali could compare himself with a female employee who would have the benefit of full pay for the full 14 weeks. The denial of full pay amounted to less favourable treatment because of his sex.
Employment Tribunal’s decision on appeal
On 11 April 2018 the EAT overturned the Tribunal’s decision. It concluded that the Tribunal had made an error of law in finding that the circumstances of the father were comparable to a woman who had recently given birth. The primary purpose of maternity leave and pay is the health and wellbeing of the mother. This differs to the purpose of parental leave which is for parents to care for their children. The EAT concluded that the Tribunal had applied the wrong comparator. The correct comparator was a woman on shared parental leave. Shared parental pay is available to men and women on equal terms; with no discrimination between the sexes (in ability to take such leave or in the payment).
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