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Refusing Fathers enhanced Shared Parental Pay is not discrimination

Apr 13th, 2018

The Employment Appeal Tribunal (EAT) has overturned the Employment Tribunal’s decision in Capita Customer Management Limited v Mr M Ali and another. The Tribunal had originally found that Mr Ali had suffered sex discrimination when his employer failed to pay enhanced shared parental leave equivalent to the maternity pay that a woman on maternity leave would have received for the same period. 

Following the birth of his daughter, Mr Ali took 2 weeks’ paid leave. Although he was eligible for shared parental leave (SPL), he was told that he would only be paid statutory shared parental pay (SPP). He issued Tribunal proceedings alleging direct sex discrimination, arguing that as the SPL regime allows parents to decide between themselves who cares for a child following the mother’s compulsory maternity leave; it was discriminatory to pay the mother more than the father in respect of the remainder of the leave.

In their decision, the EAT raised 3 distinct points. Firstly, they determined that there is a clear distinction between the Pregnant Workers Directive (No. 92/85) and the Parental Leave Directive (No. 2010/18). The focus of the Pregnant Workers Directive is not childcare, instead the health and wellbeing of the birth mother, including setting out Member States’ obligations in relation to pay. This contrasts with the Parental Leave Directive which focusses on the care of the child and makes no provisions for pay. 

Secondly, the EAT found that the Tribunal had used the wrong comparator when assessing Mr Ali’s case. In the EAT’s view, the correct comparator was a woman on SPL on the same terms as Mr Ali. Inevitably, this would mean that there was no sex discrimination. 

Finally, the EAT noted that even if the Tribunal’s comparator was correct, the more favourable treatment given to women on maternity leave was lawful by the exception in s.13(6)(b) of the Equality Act 2010. The EAT accepted that it may be possible to compare a father on SPL and a mother on maternity leave but only after 26 weeks when the focus of maternity leave shifts from recovery to caring for the child.

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