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Following on from the case of Snell v Network Rail Limited (regarding an apparently discriminatory shared parental pay policy), the Leeds Employment Tribunal has recently decided that it is direct discrimination on grounds of sex not to pay men who take shared parental leave enhanced parental leave pay in circumstances where a woman on maternity leave would have received enhanced maternity pay. Whilst this is only a decision of the Employment Tribunal and is not therefore binding on other tribunals, it is certainly interesting to note the reasons for this decision as there is always the risk that other Employment Tribunals may well follow suit. Employers who pay enhanced maternity pay may wish to review their own policies to establish if there are any discrepancies and, if so, to consider whether they wish to take any action at this stage, or to adopt a ‘wait and see’ approach to find out if this decision is appealed or if there are any further decisions on this point in the near future.
In the case of Ali v Capita Customer Management Limited, Mr Ali sought to take shared parental leave in order to assist with the care of his new born baby following a recommendation that his wife return to work to assist in combatting the post-natal depression from which she was unfortunately suffering. Mr Ali had transferred to Capita from Telephonica, which had operated a contractual enhanced maternity pay policy which applied to any female employee who had transferred with Mr Ali. Under the terms of the policy, a woman on maternity leave was entitled to full pay for the first 14 weeks of her maternity leave.
Mr Ali took two weeks’ paternity leave for which he was paid full pay. He was then on annual leave for a week. On his return to work, he asked that he be allowed to take shared parental leave and to benefit from enhanced shared parental pay, following the same model as the maternity pay policy. This would have given him an additional 12 weeks’ full pay.
Capita informed Mr Ali that he would not be entitled to enhanced shared parental pay as the policy applied only to women on maternity leave. Mr Ali did not therefore take shared parental leave as he said that he could not afford to do so without the enhanced pay. Mr Ali subsequently brought a claim for direct discrimination on grounds of sex in the Leeds Employment Tribunal.
The Employment Tribunal held that the policy operated by Capita was directly discriminatory on grounds of sex. The argument raised by Capita that Mr Ali could not compare himself with a woman on maternity leave because she would be in a ‘special position’ as a result of having given birth was not accepted. The Employment Tribunal held that Mr Ali was not comparing himself with a woman in the compulsory maternity leave period (the two weeks immediately following birth). It found that‘he cannot and does not do so, because that time is specifically associated with recovery after childbirth, a condition unique to women’.
However, the Tribunal held that:
Mr Ali…could compare his treatment with that hypothetical comparator (female Telefonica transferred employee who had a baby in February 2016, taking leave to care for her child after the 2 week compulsory leave period ) even though he had not given birth.
Mr Ali could claim sex discrimination by reference to the more favourable treatment that would have been given to that female colleague. It was accepted that he was denied that benefit and was deterred from taking the leave and was less favourably treated as a man. The reason why Mr Ali was treated less favourably was his sex.
The Tribunal then went on to consider whether any ‘special treatment’ should be afforded to a woman in connection with pregnancy and childbirth for the 12 weeks following the two week compulsory maternity leave period. It found that this was not the case, stating:
In 2016, 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 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.
Mr Ali’s claim on this ground therefore succeeded.
Based on this ruling, any employers who pay enhanced maternity pay may wish to review how their policies would apply to an employee seeking to take shared parental leave. Whilst it is possible to treat a woman differently for the two-week compulsory maternity leave period, according to this decision, any differential treatment of a male employee seeking to take shared parental leave after that date may amount to direct discrimination on grounds of sex.
However, it is worth noting that earlier cases appear to be contrary to this decision, including the decision of another Employment Tribunal in Shuter v Ford Motor Company Limited in relation to the ‘old’ Additional Parental Leave. In that case, the tribunal rejected the idea that the correct comparator for a man taking APL was a woman on maternity leave as this as the right to take APL was not a free-standing right but was dependent on the mother choosing to return to work, in a similar way to the right to take shared parental leave being dependent on the mother ending her maternity leave early.
The jury therefore remains out on this particular subject, but employers would be well advised to review their policies and to make decisions on whether to pay shared parental leave with an understanding of the potential issues which may arise. With more and more employers reducing or removing enhanced maternity pay schemes, it seems likely that the threat of further increased costs due to the risk of having to pay enhanced shared parental pay may well be another nail in the coffin of such schemes.
For further information please contact our Employment Team on 0113 220 6270.