Can an Employer's Failure to Pay Enhanced Shared Parental Pay Constitute Direct Sex Discrimination?
Is an employer's decision to pay enhanced maternity pay to a female employee but not enhanced shared parental pay to a male employee direct discrimination?
Yes, said an employment tribunal in the case of Ali v Capita Customer Management Ltd.
Facts
Mr Ali joined Capita Customer Management Ltd (Capita) in July 2013, following a TUPE transfer from Telefonica. Mr Ali's daughter was born on 5 February 2016 and he was allowed to take two weeks' paid paternity leave immediately after her birth. Whilst on paternity leave, Mr Ali informed Capita that his wife was suffering from post-natal depression and that she had been advised by a medical professional to return to work to assist her recovery. Mr Ali returned to work on 7 March 2016 and requested whether he could take further leave to care for his wife and daughter. Capita informed Mr Ali that he was eligible for shared parental leave (SPL), but that he would only be paid statutory shared parental pay (ShPP) during this period. Having discussed this with his female colleagues who had also transferred from Telefonica to Capita, Mr Ali asserted that he was entitled to receive the same pay as his female colleagues who were taking 14 weeks' maternity leave. He subsequently raised a grievance with Capita, however this was rejected.
Mr Ali then brought proceedings in the employment tribunal, alleging direct and indirect sex discrimination. In particular, he claimed that Capita's treatment of him amounted to direct sex discrimination by choosing to pay women more than men when taking time off to care for their children, particularly when it was open to parents to choose which one of them would take leave to care for their child.
Decision
The tribunal upheld Mr Ali's claim for direct sex discrimination and rejected his claim for indirect sex discrimination.
In relation to the claim for direct sex discrimination, the tribunal concluded that Mr Ali was entitled to compare himself with a hypothetical female colleague who took leave to care for her child after the two-week compulsory maternity leave period. This was because the child-caring role that Mr Ali wished to perform was not a role exclusive to a mother and men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents -depending on their personal circumstances - but this should be free from any generalised assumptions that the mother is always best placed to undertake that role and, correspondingly, the mother should receive full pay because of that assumed exclusivity. By refusing to provide Mr Ali with full pay during his period of extended leave, Capita were subjecting him to less favourable treatment by reason of his gender. In this case, Mr Ali was best placed to care for his child, given his wife's post-natal depression and Capita were aware of these circumstances.
Capita sought to argue that Mr Ali's hypothetical comparison was invalid, as female employees are only granted the right to maternity leave and the ancillary right to maternity pay as a result of being pregnant and/or giving birth. They also argued that the special treatment afforded to women in connection with pregnancy and childbirth under section 13(6)(b) of the Equality Act 2010 meant that it was reasonably necessary for women to receive 14 weeks' enhanced maternity pay to ensure that they were not disadvantaged by giving birth. The tribunal rejected these arguments.
Best Practice
Whilst the tribunal in this case held that the employee had been subjected to direct sex discrimination, this decision is very fact-specific. It is not clear whether the Tribunal's approach to the issue of a comparator was correct. For example, should the comparator have been a female wishing to take SPL?
It is also important to note that the decision contrasts with a previous case, Hextall v Chief Constable of Leicestershire Police, which was decided on similar facts. In Hextall, the tribunal found that it was not discriminatory to offer enhanced maternity pay but only statutory ShPP. The two employment tribunals reached different decisions. In Hextall, the comparison was made between a man taking SPL and a woman taking SPL, rather than a man taking SPL and a woman taking maternity leave - and the decision reached was different.
It is not clear what the best authority is on this point and both cases are in the process of being appealed. We will keep you updated on the decisions in due course.