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To establish that they have been directly discriminated against under the Equality Act 2010, a person needs to show that they have been treated less favourably than another person, known as a comparator, whose circumstances are not materially different than their own, because of one of the protected characteristics (such as sex).

In the case of Capita Customer Management Limited v Ali the Employment Appeal Tribunal ("EAT") reversed the decision of the Employment Tribunal (“ET”) and ruled that an employer did not directly discriminate against men on grounds of sex by refusing a new father enhanced pay whilst on shared parental leave whilst female employees received enhanced maternity pay for the first 14 weeks of maternity leave.

Facts of the Case

Following the birth of his daughter Mr Ali took two weeks paternity leave on full pay and a further week’s paid holiday leave. His wife was subsequently advised to return to work by her doctor in order to assist her recovery from post-natal depression and so Mr Ali took shared parental leave in order to care for the baby.

Under the company policy, female employees at Mr Ali’s employer were entitled to maternity pay comprising 14 weeks’ full basic pay followed by 25 weeks’ statutory maternity pay whereas male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave. When Mr Ali took leave he was informed that “he would not receive full pay if he took leave but would be paid at the statutory rate as would a woman taking shared parental leave.” Mr Ali felt that this was unfair as it meant fathers were at a disadvantage in comparison to mothers because they were allowed 14 weeks’ enhanced maternity pay and so he brought a claim for direct sex discrimination before the ET. Mr Ali acknowledged that he had been paid 2 full weeks’ pay so his claim focused on the additional 12 weeks’ full pay a female employee on maternity leave would have received.

Decision

Mr Ali’s initial claim was successful in the ET; however the EAT allowed the appeal. The EAT noted that the findings of the ET were “based on their assumption or decision that the purpose of maternity leave and pay after the second week from childbirth is care of the child.”

The EAT drew a distinction between the rights given to pregnant workers and those who have given birth (who by reason of biology are female) on one hand and, on the other, those (of either sex) who take time off to care for their child. The Pregnant Worker’s Directive requires employers to give pregnant women and those who have given birth a minimum of fourteen weeks’ maternity leave with adequate pay; the reason for this being to promote the health and wellbeing of the mother. This is was to be directly contrasted with the Parental Leave Directive which is given on the same terms for both men and women but “does not specify any payment to be attached to such entitlement to leave for this purpose.”

The EAT felt that the ET had failed to recognise that the purpose of maternity pay is for the health of the mother and not for care of the child. It said: “Maternity pay is given not for performing a role but to enable the mother to take leave for her own health and wellbeing.” The EAT reasoned that the level of pay claimed by Mr Ali was “inextricably linked to the purpose of such leave which does not apply to a man.”

A woman on maternity leave was therefore not an appropriate comparator for Mr Ali; her circumstances were materially different to his. The EAT noted that Shared Parental Leave was given on the same terms to both men and women and therefore there was no direct discrimination when a higher level of maternity pay was paid to a woman that would be paid to someone of either gender taking Shared Parental Leave.

Furthermore the payment of such enhanced maternity pay fell within the exception under section 13(6) (b) of the Equality Act as special treatment afforded to a woman “in connection with pregnancy or childbirth” which requires to be disregarded.

The technical legal arguments may be impeccable but for many the decision will offend against common sense and be detrimental in freeing women of the “motherhood penalty” exemplified in the gender pay gaps which large employers were this month obliged to publish.  The Shared Parental Leave provisions were introduced on the premise that after the two week period of compulsory maternity leave a woman may give up her entitlement to the remainder of maternity leave in order to return to work and to allow a partner (usually a man) to take over child care responsibilities. The rejection of equivalence between men and women during this period can only reinforce women’s position as primary care givers (even if it is really for the “good of their health”).

The Department of Business, Energy and Industrial Strategy started a new campaign in February called “Share the Joy” which stated that “around 285,000 couples are eligible every year for shared parental leave, but take-up could be as low as 2%”. The campaign will try to encourage more men to take time off following childbirth, however the Capita decision will do little to incentivise more men to take Shared Parental Leave, as the pressure remains off employers to make doing so more attractive.
 
The decision will nevertheless come as good news for those employers who pay more than the statutory minimum during maternity leave but who do not similarly enhance Shared Parental Leave Pay. One note of caution was however sounded by the EAT who acknowledged the argument of the “intervenor” in the case, the campaigning group Working Families. Mr Ali’s case concerned payment for the first 14 weeks after birth but Working Families pointed out that “after a period of 26 weeks (or ordinary maternity leave) the purpose ….may change from biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave”.

If that is so the arguments on direct discrimination in this area may not be entirely over.

If you would like to discuss any of the points raised above please contact a member of the Stronachs employment team.

Eric Gilligan, Partner and Ross Michie, Trainee Solicitor

Chambers Leading Firm 2019

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