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Legal Corner: Father offered lower paternity pay than his female colleagues ‘was discriminated against’

25th Aug 2017
Legal Corner: Father offered lower paternity pay than his female colleagues ‘was discriminated against’

(Photo: Flickr2Commons)

In 2015, the Government introduced the right for parents whose babies were expected after April 5, 2015 to take shared parental leave (SPL). Under these Regulations, the first two weeks of leave after the birth of a child could only be taken by the mother, in order to protect her health after the delivery of her child. After this period, there was no restriction and no ‘exclusivity’ of leave for the mother only. Either parent would be entitled to take leave to care for their child until their child turned one. This was a deliberate change in policy by the Government to encourage more flexibility, and to allow fathers to take a greater role in caring for their children.

However, SPL was paid at the statutory rate of £140.98 a week or 90% of your average weekly earnings, whichever was lower. Many companies however, already had, and still have, policies in place where women taking maternity leave are entitled to be paid either at their normal salary rate, or a proportion of it (which would be higher than the statutory rate). The same policies do not always apply to fathers taking SPL. This can lead to a financial detriment to the family if the father takes SPL, as was the case in a recent claim brought in the Employment Tribunal, Ali v Capita Customer Management (1800990/2016).

Mr Madaser Ali worked as a Business Customer Advisor for Capita. He had transferred from Telefonica in 2013, and their policies still applied to him. In February 2016, his wife gave birth to their first child, a daughter. Under the policies, he was entitled to two weeks paternity leave at full pay, followed by 26 weeks of additional paternity leave, where there was no guarantee of pay over and above the statutory amount. Women however, were entitled to 14 weeks of company maternity pay (paid at the full salary rate) followed by 25 weeks paid at the statutory rate.

Unfortunately, Mr Ali’s wife developed post natal depression, and the medical advice suggested that she should return to work promptly to assist her in attaining a sense of normality. Mr Ali wished to therefore stay at home and care for his daughter to enable his wife to go back to work; however if he did so, he would suffer a significant financial disadvantage in that he would only be paid at the statutory rate. He therefore complained to his employer that he was being treated unfavourably as a man, in that a woman received 14 weeks of paid leave. Capita did not uphold his grievance, and therefore Mr Ali brought a claim of direct sex discrimination against them in the employment tribunal.

In the tribunal, Capita argued that Mr Ali could not compare himself to a female as he had not given birth, and that only women could take maternity leave since only women could give birth. However, the tribunal noted that Mr Ali was not comparing himself to a woman who had given birth, in that he accepted that the first two weeks of leave should be reserved for the mother to allow her to recover from childbirth. It was the following 12 week period that he complained about. The tribunal concluded that Mr Ali was treated less favourably than a woman 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 then went on to consider Capita’s argument that the entire 14 week period was reserved exclusively for a mother to care for her child. The tribunal rejected this argument. They considered that there was no reason for such exclusivity beyond the initial two week period, and that the parents should be able to choose what worked best for their circumstances, free of generalised assumptions that the mother was always best placed to undertake that role and should get the full pay because of that assumed exclusivity. Therefore, Mr Ali’s claim of direct sex discrimination succeeded.

This is the first reported case to decide that paid maternity leave policies are discriminatory. It is only a decision of a tribunal and therefore subject to appeal; reports suggest that it has already been appealed to the Employment Appeal Tribunal. It remains to be seen whether that appeal changes the outcome or not. However, employers will need to keep a watchful eye on this case, as it may well result in employers having to reconsider the maternity and paternity leave it offers to its employees.

Safia Tharoo, Barrister, 42 Bedford Row, London

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