In the case of Ali v Capita Customer Management Ltd, a father has won a sex discrimination claim after his employer told him that he would be paid full pay for only two weeks’ paternity leave.
Background
Mr Ali was a former Telefonica employee who transferred to Capita. When Telefonica employees transferred, the company’s policies transferred with them.
Under the Telefonica maternity policy, female employees taking maternity leave are entitled to 14 weeks’ enhanced maternity pay, followed by 25 weeks’ statutory maternity pay.
Fathers are entitled to two weeks full pay during their paternity leave.
When Mr Ali’s wife gave birth, she was diagnosed with post-natal depression and her doctor advised that returning to work would assist her recovery.
Mr Ali was able to take full paid paternity leave for the first two weeks following the birth of his child, followed by a number of weeks’ annual leave.
On his return to work, HR advised that he was entitled to shared parental leave but he would only be entitled to statutory shared parental pay.
Ali v Capita Customer Management Ltd
Mr Ali argued that male employees should be given the same right to leave on enhanced pay as female employees and thought that it was an unfair assumption in 2016 that a man caring for his baby is not entitled to the same pay as a woman performing that role.
The employment tribunal upheld Mr Ali’s sex discrimination complaint.
They believed that the role of primary carer is a matter of choice for the parents, and that the choice should be free of “generalised assumptions”.
DTM Legal Employment Law Associate, Tom Evans, says: “We now have a number of first instance tribunal decisions upholding claims for enhanced shared parental pay in circumstances where employees pay enhanced maternity pay. However, given we currently do not have an appeal court/tribunal decision on this, uncertainty remains.
“If Capita should appeal the decision, hopefully more clarity will be given to employees in the future.”
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