Regular readers may recall that in August 2017, I wrote about the case of Mr Ali, who had wished to take Shared Parental Leave (SPL) after the birth of his daughter. His wife was suffering from postnatal depression and the medical advice suggested that she would benefit from a return to work.

However, Mr Ali was told by his employer, Capital Customer Management Ltd, that under Capita policies, if he took SPL he would only be entitled to be paid a statutory rate of £140.98 a week or 90 percent of his average weekly earnings, whichever was lower. Conversely, a female Capita employee with the same length of service as Mr Ali who took maternity leave was entitled to 14 weeks of full pay followed by 25 weeks at the statutory rate.

Under the SPL Regulations which came into force in 2015, the first two weeks of leave after the birth of a child can only be taken by the mother, in order to protect her health after the delivery of the baby. After this period, there is no restriction and no ‘exclusivity’ of leave for the mother only. Either parent is entitled to take leave to care for their child until their child turns one. The purpose of the SPL Regulations was to encourage more flexibility and to allow fathers to take a greater role in caring for their children.

However, the Capita policies meant that Mr Ali would suffer a significant financial disadvantage as compared to his female counterparts in taking time off to care for his daughter. He raised an internal complaint which was unsuccessful and then brought a claim of direct sex discrimination to the Employment Tribunal – which he won.

They considered that when looking at the 12 week period after the compulsory two week ‘recovery period’ for a woman after delivery, Mr Ali was treated less favourably than a women in that he was denied full pay for the 12 week period, and that the reason he was treated less favourably was that he was a man. They rejected an argument that the 14 week period was exclusively reserved for a mother to care for her child, instead concluding that parents should be free to choose what worked best for their families.

Capita appealed to the Employment Appeal Tribunal (EAT) (Case No: UKEAT/0161/17/BA) who this month have overturned the decision of the Employment Tribunal. The EAT considered that the Employment Tribunal had failed to consider the purpose of maternity leave and maternity pay. They found that the purpose of paid maternity leave was for the health and well-being of a woman in pregnancy, confinement and after recent childbirth. It was not for specifically for caring, although that was, of course, a consequence of the leave. Therefore, there could not be a direct comparison between Mr Ali’s position under the SPL policies and a female employee who received enhanced maternity pay.

Whilst this case does confirm the position as most legal experts had understood it prior to Mr Ali’s initial success, it also confirms that where an employer offers maternity leave on more generous terms than the statutory rates but does not do the same for SPL, a father who wishes to access SPL and care for his child will face a financial disadvantage as compared to a mother. To some extent, this does undermine the reason for creating SPL in the first place, as flexibility comes, in many cases, with a significant reduction in income – which many families are simply unable to afford. The latest figures suggest that only around 2% of eligible families have taken up the option of SPL since 2015.

In February, the Government announced a new publicity drive at the cost of £1.5 million to better inform parents about SPL under the banner ‘share the joy’. However, regardless of publicity, decisions such as this one are unlikely to assist in increasing the current take up rate. It remains to be seen what further measures if any, the Government will consider in order to give families the flexibility that so many desire.

Safia Tharoo, Barrister 42 Bedford Row, London