Dads Against Discrimination

Posted on: July 20th, 2017

Happy Father’s Day, Dads! With the Taylor Review grabbing so many headlines you may have missed that June also brought an additional Father’s Day this year, with the publication of a case in which a father won his employment tribunal claim for direct sex discrimination. This was due to his employer’s policy to pay female employees maternity pay at full pay, but to only pay the statutory rate of shared parental pay to fathers taking shared parental leave.

So, what was this case all about?

In the case of Ali v Capita Customer Management, Mr Ali took two weeks paternity leave on full pay immediately following the birth of his daughter. Mr Ali’s wife was advised to return back to work shortly after the birth, as she was suffering from post-natal depression. After discussing the situation with Capita’s HR department, he was told that he was eligible for shared parental leave but would only be entitled to statutory pay during this time.

Speaking with colleagues, Mr Ali found out that his female coworkers were entitled to full pay for 14 weeks’ maternity leave under Capita’s maternity policy. Naturally, he raised a grievance, claiming that he should be entitled to the same, but Capita considered that it did not have a legal obligation to pay the father an enhanced rate of pay and rejected his grievance.

He issued a claim at the Employment Tribunal for indirect and direct sex discrimination, arguing that, for the 12 weeks following the 2 weeks’ compulsory maternity leave for mothers, male employees should be given the same right to full pay as female employees. Mr Ali contended that the policy made the assumption that a man caring for his baby is not entitled to be paid the same as a woman performing that role. He also complained that the policy deterred him from taking leave, as he would not receive full pay in the same away a mother would.

What did the employment tribunal decide?

The employment tribunal upheld Mr Ali’s complaint of direct sex discrimination. The tribunal considered that he was entitled to compare his treatment with a hypothetical female taking leave to care for her child after the two-week compulsory leave period, even though he had not given birth. As such, the denial of full pay amounted to less favourable treatment and the reason for this was Mr Ali’s sex.

Interestingly, the employment tribunal went further in its judgment and, perhaps surprisingly for our notoriously stuffy judiciary, it commented on the modern practices of parenting. The employment tribunal observed that parental leave and pay is not exclusive to women – nowadays men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances, but the tribunal remarked that the choice made should be ‘free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity’. Hear, hear!

What does this case really mean for employers?

Unfortunately, the answer to this question is: not a lot, yet! We appreciate that this is a typical lawyer’s answer but this judgment is a first instance decision, meaning that other tribunals do not need to follow the result.

The case also leaves us with some conflicting case law and the overall picture remains unhelpfully confusing. In the case of Hextall v Chief Constable of Leicestershire Police the employment tribunal found that a police force’s policy of giving a period of full pay to mother on maternity leave, but only statutory pay to partners, was not discriminatory.

We understand that Capita are appealing the decision to the employment appeal tribunal. The decision of the EAT will be binding and will hopefully provide some welcome clarity for employers (and employment lawyers alike!). If the EAT are to accept the case of Mr Ali, this will of course allow claimants to successfully claim direct sex discrimination in similar circumstances.

We will of course provide updates of any further developments, but it would now be a useful time to review maternity and shared parental leave policies to ensure consistency, expose any potential areas of risk and gauge levels of understanding within your organisation. It is also important to consider the reason behind any policies you have in place, to ensure you can justify them if the need arises!

If you would like assistance with this or to discuss any issues arising please do get in touch with the Employment team here.