15 May, 2018
In the recent appeal made by the Respondent in Capita Customer Management Ltd v Ali UKEAT/0161/17/BA, the Employment Appeal Tribunal (EAT) held that failing to pay a father his full salary during shared parental leave, where a female colleague on maternity leave would have received her full salary, did not constitute sex discrimination.
In this case, Mr Ali, a father, wished to take shared parental leave to allow his wife to return to work. The employer, Capita, had a shared parental leave policy in place which entitled fathers to only 2 weeks' full pay, compared to mothers on maternity leave entitled to receive 14 weeks' full pay.
Mr Ali raised a grievance and subsequently brought a claim for sex discrimination. In the first instance decision, the employment tribunal found that the unequal treatment did amount to sex discrimination within the meaning of the Equality Act 2010.
Upon appeal, the EAT held that employment tribunal had wrongly compared the circumstances of Mr Ali to that of a mother who had recently given birth. The EAT stated that the purpose of maternity leave was 'for the health and wellbeing of a woman during pregnancy, confinement and after recent childbirth' and whilst a woman on maternity leave will no doubt take care of her child, that is not the primary purpose of such leave. The correct comparator in this case would therefore be a female wishing to take shared parental leave to care for a child. In this case, Capita's shared parental leave policy provided equal terms for both men and women.
The EAT went on to find that maternity leave and maternity pay are 'inextricably interlinked'. Therefore, a higher rate of pay for mothers on maternity leave is considered 'special treatment' which is afforded to women in connection with pregnancy or childbirth under Section 13(6)(b) of the Equality Act 2010.
This decision means that employers are entitled to have different policies on pay for shared parental leave and maternity leave. It should however be noted that the EAT have only considered the position during the first 14 weeks of leave and it is unclear if the position changes after this period.
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