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Tribunal ruling: a storm in a teacup?

Published: 20 Jun 2017

Legal Rights Adviser, Liz Gardiner, examines the recent sex discrimination case over shared parental leave (Ali v Capita Customer Management Ltd)

It was only a matter of time but now a tribunal has been asked, is it discrimination for employers not to offer enhanced pay for shared parental leave (SPL), but to do so for maternity leave? In a judgment published this month (Ali v Capita Customer Management Ltd), a father was found to be directly discriminated against when comparing his pay while on SPL to a female colleague on maternity leave. Mr Ali received only the statutory rate of pay, while the female colleague was entitled to full pay for 14 weeks. The judge agreed that he was deterred from taking the leave and suffered direct discrimination.

Those who have followed SPL from the outset will know that the government’s guidance has long been that maternity leave is a special case. Their technical guidance explains that an “occupational maternity or paternity scheme may continue and not be extended to shared parental leave”. However, SPL has been implemented in a variety of ways, and it is discrimination (as Network Rail discovered in another recent tribunal case: Snell v Network Rail) to treat mothers and fathers/partners on shared parental leave differently.

Employers should not panic. This judgment was decided on the particular facts of the case, doesn’t set a precedent and may be appealed. But it makes interesting reading. The judge considered whether special treatment for women on maternity leave should go beyond the two weeks of compulsory maternity leave, concluded that it wasn’t clear why it should, and allowed Mr Ali to compare his pay with a female colleague on maternity leave after the compulsory maternity leave period. The judge accepted that Mr Ali wasn’t comparing himself with a mother who had given birth, but with a woman on maternity leave after the compulsory leave period.

There are many who may challenge the view that two weeks of special treatment is all that is reasonably necessary to remove the disadvantages of childbirth. And it raises again the question: what is the purpose of maternity leave? Is it for childcare, or the recovery of the mother after birth? Or both? The argument that the purpose of maternity leave was childcare was rejected in an earlier tribunal case on additional paternity leave (Shuter v Ford Motor Company Ltd) where the tribunal also noted that the right to additional paternity leave was not a free-standing right , but dependent on the mother choosing to return to work. The tribunal in Shuter v Ford rejected a direct discrimination claim saying that the correct comparator should not be a woman on maternity leave, but a female partner on additional paternity leave.   This view was also shared in a more recent tribunal decision in 2015.  In Hextall v Chief Constable of Leicestershire Police  the tribunal found that paying maternity pay and shared parental pay at different rates was not discriminatory and held the correct comparator for a man on SPL was a woman on SPL.

However, the judge in Ali v Capita also noted that “In 2016, 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 the  choice made should be free of generalised assumptions that the mother is always best placed to undertake that role”.

It is true we have a long way to go before we’re free of such generalised assumptions. Working Families is campaigning for better rights – to leave and pay – for fathers. Choice for parents will always be dependent on their financial circumstances and where maternity leave is enhanced and shared parental leave not, it might not make financial sense for a father to take up his right to leave.   So we’re calling on employers to level up the pay for SPL as well as for maternity leave. This would stop SPL being a second class option and give families real choice about who works and who cares.

Read our recent research on fathers and family from the 2017 Modern Families Index.

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