In Ali v Capita Customer Management Limited a new father succeeded in his direct sex discrimination claim against his employer when he was only entitled to two weeks’ full pay paternity leave followed by shared parental leave at statutory pay, whereas his equivalent female comparator was entitled to 14 weeks’ enhanced maternity leave on full pay.
In Ali v Capita Customer Management Limited, Mr Ali’s employment had transferred from Telefonica to Capita under TUPE in 2013 and Telefonica’s policies transferred with him. Under these policies, female employees were entitled to enhanced maternity pay as they were given 14 weeks’ enhanced maternity pay, followed by 25 weeks at the statutory rate. Male employees were entitled to two weeks paternity leave on full pay.
Mr Ali had a baby with his wife on 5 February 2016, and took his two weeks paid paternity leave immediately after the birth. Following this, he took some annual leave. During his paternity leave, Mr Ali’s wife was diagnosed with post-natal depression and was medically advised that returning to work would assist her recovery. On Mr Ali’s return to work, Capita informed him that he was able to take shared parental leave but he would only be entitled to statutory pay. Mr Ali claimed direct sex discrimination and victimisation at the Employment Tribunal (“ET”).
Mr Ali accepted that the two weeks immediately following the birth are compulsory for women to enable them to recovery from childbirth; however, in the subsequent 12 week period when he wanted to care for his baby, he was denied the benefit of full pay and deterred from taking leave. He argued that male employees should be given the same right to enhanced pay, and after the two weeks compulsory leave, either parent could care for their baby depending on the choices made by the parents and their particular circumstances. This policy took away the choice he and his wife wanted to make as parents for their baby, and this was not a valid assumption to make in 2016.
The ET upheld Mr Ali’s claim of direct discrimination and victimisation. It held that it was not clear why any exclusivity should apply beyond the two week compulsory period, and parents should be free to make a choice free of “generalised assumptions” that the mother is always best placed to undertake the greater role in caring for their babies.
In these particular circumstances, because Mr Ali’s wife was suffering from post-natal depression, he was best placed to play the greater role in caring for their baby. However, he was deterred from taking on this role because of pay, for which his female comparator would have received full pay. As such, this was directly discriminatory against male employees.
Paula Bailey comments "This case is only the third case dealing with the enhancement of shared parental pay, and all decisions so far have been at first instance. An appeal decision is needed as soon as possible to settle the uncertainty in this area. It has been reported that Capita will appeal this decision; so, watch this space."
If you require further assistance, please contact a member of the team.