News | Legal News

12 June 2017

Father wins parental leave discrimination case

A man has won a sex discrimination tribunal case, after his employer said he could not take additional paternity leave with enhanced pay.

Personnel Today reports that the worker, Mr Ali, had originally been employed by Telefonica but transferred to Capita, with the same policies applying.

Initially, he took two weeks of paid paternity leave after his wife gave birth to a child. He also took some annual leave.

However, with his wife experiencing post-natal depression, she was advised to return to work. And that encouraged Mr Ali to see whether he could take shared parental leave from his own job.

Under the shared parental leave rules, Mr Ali was told by his employer that he could take more time off. However, he was informed that he would only be entitled to statutory pay during this leave.

According to Personnel Today, a female employee transferring from Telefonica to Capita with 26 weeks' service would have been able to access 14 weeks of enhanced paid leave after giving birth.

Mr Ali suggested he was being discriminated against, saying that while two weeks of maternity leave is compulsory for mothers, male workers should be eligible for the same enhanced pay as female employees for the following 12 weeks.

In the case, which was referred to as Ali v Capita Customer Management Ltd, an employment tribunal upheld the sex discrimination complaint made by Mr Ali.

Hannah King, associate in the employment team at B P Collins, commented: 

"Since the introduction of Shared Parental Leave in 2015, the uptake has been disappointingly low.  One of the main reasons behind this is believed to be the reluctance of employers to match their shared parental pay with any enhanced maternity pay offered.  With no legal requirement to do so, most couples find themselves in a better financial position by maintaining the traditional status quo of the mother taking maternity leave.

"There are currently only a handful of first instance decisions relating to claims for sex discrimination on the grounds that employers have failed to enhance their shared parental leave pay to match that offered to women taking maternity leave, with the case of Ali v Capita Customer Management Ltd  being the most recent.  This decision however, conflicts with an earlier decision Hextall v Chief Constable of Leicestershire Police, where an employment tribunal held that a police force’s policy of giving a period of full pay to mothers on maternity leave, but paying only statutory shared parental pay to partners, is not discriminatory.  As these are both first instance decisions, there is no binding case law either way on the requirement to enhance shared parental pay if they enhance maternity pay.  As it’s not required by legislation either, a decision at appellate level would be welcome to clarify this area of uncertainty for employers."

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