No says the EAT in the case of Capita Customer Management Ltd v Ali UKEAT/0161/17/BA.
After taking two weeks’ compulsory maternity leave, Mr Ali’s wife was advised to return to work as a means of helping her post-natal depression. Mr Ali therefore opted to take shared parental leave for the remaining 50 weeks’ leave.
Mr Ali’s employment had transferred to Capita following a TUPE transfer from Telefonica in 2013. Transferring female Telefonica employees were entitled to enhanced maternity pay of 14 weeks’ basic pay. However, Capita would only pay statutory shared parental pay to Mr Ali for the duration of this shared parental leave.
Mr Ali brought a claim for direct sex discrimination, arguing that he should receive the same level of pay as a woman on maternity leave.
The Employment Tribunal at first instance found in favour of Mr Ali. It held that the purpose of maternity leave and shared parental leave was to care for the child and that this applied equally to both mothers and fathers. The Equality Act 2010 provides that in determining whether a man has been discriminated against because of sex, no account should be taken of special treatment afforded to women in connection with pregnancy or childbirth, but the Tribunal restricted such special treatment to the first two weeks of compulsory maternity leave. It commented that by making entitlement to pay equal for maternity leave and shared parental leave, fathers would be encouraged to take shared parental leave.
Capita appealed to the Employment Appeal Tribunal.
The EAT upheld the appeal on the basis that the Tribunal had erred in finding that the purpose of both maternity leave and shared parental leave is to care for the child. In fact, domestic and European legislation makes a distinction between the rights of pregnant workers, those who have given birth or are breastfeeding, and the rights given to parents of either sex to take leave to care for their child.
Therefore, a mother taking maternity leave was not the correct comparator for Mr Ali’s claims. Rather, in the EAT’s view Mr Ali would have to compare himself to a woman on shared parental leave, who would not have received any enhanced pay as she would have received on maternity leave. The inevitable conclusion therefore, was that Mr Ali had not been discriminated against on the grounds of sex.
The EAT noted that there may be an argument that additional maternity leave could be distinguished from ordinary maternity leave as having the primary purpose of caring for the child. Therefore, employers who offer enhanced maternity pay during Additional Maternity Leave (AML) could still be open to claims from male employees that they should also receive an equivalent level of enhanced shared parental pay.
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