EAT says father who was refused enhanced shared parental pay was not discriminated against!

The Employment Appeals Tribunal (EAT) has ruled it is not discriminatory to refuse a new father enhanced pay whilst on shared parental leave.

In Ali v Capita Customer Management the judge held that the Employment Tribunal (ET) had failed to take into consideration the purpose of paid maternity leave when it reached its decision and ruled that it was not a matter of discrimination refusing the father the same rights as the new mother following the birth of their child.

In 2017, the ET held it was direct sex discrimination to allow Mr Ali only 2 weeks leave on full pay, when female employees were allowed 14 weeks maternity leave with full pay.

In this case, Mr Ali’s wife had been advised by her GP to return to work early to help with her post-natal depression. Mr Ali’s employers granted him 2 weeks fully paid paternity pay and a number of weeks paid annual leave following the birth of his child.

However, Mr Ali’s employers had only offered statutory minimum pay thereafter, this meant that once he had taken his 2 weeks paternity leave, everything after would be a substantial loss in earnings.

Mr Ali lodged a complaint to the ET claiming that his employers refusing to pay him the same rate as his partner was direct sex discrimination. His employers appealed this, arguing that Mr Ali could not compare his situation to the new mother on maternity leave as he was not the one who had given birth.

The ET responded agreeing with Mr Ali, arguing that he had not compared himself to the mother who had given birth. Suggesting further, that after the initial two – week recovery period that is specific to a baby’s mother, a female employee on maternity leave was an appropriate comparator; it was irrelevant that Mr Ali had not given birth.

Last week, Capita Customer Management won its appeal against the ET decision.

The EAT held that the ET had poorly interpreted Mr Ali’s circumstances. Arguing that the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent child birth.”

Working Families’, Chief Executive, Sarah Jackson said: “We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and child birth must continue to be recognised in law. Only women can experience child birth and maternity leave is to protect a women’s health and wellbeing – it cannot simply be equated with ‘child care’.”

However, she does highlight the importance of providing men with greater childcare rights. “We have long called for greater rights and pay for working fathers – including a properly – paid, standalone period of extended paternity leave for fathers – but these should complement, not undermine, the rights of working mothers.”

Employers will be happy to hear they do not have to take any drastic measures to amend workplace policies immediately. However, they should be aware of any potential risks and challenges that may be made by male employees and be fully prepared to proceed with complaints should they arise.

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