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Ali v Capita Customer Management Ltd
A father, whose wife was advised to return to work to combat post-natal depression, has won a sex discrimination claim, after his employer told him that he would be paid full pay for only two weeks’ paternity leave.
Mr Ali was a former Telefonica employee who transferred to Capita. When Telefonica employees transferred, Telefonica’s policies transferred with them. Under the maternity policy, female employees taking maternity leave are entitled to enhanced maternity pay. New fathers are entitled to two weeks paternity leave on full pay.
When Mr Ali’s wife gave birth, she was diagnosed with post-natal depression. Medical advice was that returning to work would assist her recovery. On his return to work from paternity leave, HR advised Mr Ali that he was entitled to shared parental leave. However, he was told that he would only be entitled to statutory shared parental pay.
While accepting that two weeks’ maternity leave is compulsory for new mothers, Mr Ali argued that, for the next 12 weeks, male employees should be given the same right to leave on enhanced pay as female employees.
The employment tribunal upheld Mr Ali’s sex discrimination complaint. It accepted that men are being encouraged to play a greater role in caring for their babies and believed that the role of primary carer is a matter of choice for the parents. According to the tribunal, in this case Mr Ali was best placed to perform that role, given his wife’s post-natal depression.
In Practice
All tribunal decisions on shared parental leave have so far only been at the employment tribunal level. There is no binding case law that specifically requires employers to enhance shared parental pay if they enhance maternity pay and it is also not required by law, but employers should be mindful to the fact that there is a risk of a successful discrimination claim if they pay mothers and fathers unequally.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul, Kate or Andrew will be happy to discuss it with you.
