Mr Ali was employed by Capita Customer Management Ltd (Capita).
Female employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ SMP. Male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”.
Mr Ali took two weeks’ paid leave immediately upon the birth of his daughter. His wife was diagnosed with postnatal depression and was advised to return to work. Mr Ali accordingly wished to take further leave to look after his daughter. He asked Capita about his rights and they informed him that he was eligible for shared parental leave, but that they only paid statutory shared parental leave. Mr Ali asserted that he should receive the same entitlements as a female employee taking maternity leave.
When his grievance to this effect was rejected, he issued proceedings in the Employment Tribunal alleging sex discrimination.
The Tribunal upheld the sex discrimination claim holding that Mr Ali could compare himself with a hypothetical female colleague. The denial of full pay amounted to less favourable treatment and the reason for this was Mr Ali’s sex.
It is likely that Capita will appeal the decision.
The problem of sex discrimination in the workplace is typically the problem of employers discriminating against women. This is especially true around the issue of pregnancy and maternity.
This case is important because it is a male employee, not a female, who claims they were discriminated against on the basis of their sex because his employer refused to match the enhanced maternity pay given to women when he wanted to take shared parental leave.
Employers should remember that this decision is in an Employment Tribunal and is therefore not binding on future cases. At present there is no binding case law that specifically requires employers to enhance shared parental pay if they enhance maternity pay. It is not required by legislation either.
Given the uncertainty for employers on this point, the sooner the Employment Appeals Tribunal sorts out this area, the better, as Companies want assurance on whether their shared parental leave schemes for male employees are discriminatory or not. If the decision is upheld on appeal, it will have a profound effect on how employers approach maternity and shared parental leave.