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Avoiding a Discrimination Claim for Shared Parental Leave

Napthens - June 28th 2017

In a recent Employment Tribunal case, Mr M Ali v Capita Customer Management, it was ruled that Mr Ali was directly discriminated against due to his sex. Following the birth of their child, Mr Ali’s wife was informed that she should return to work as part of her treatment process to combat post-natal depression. As such Mr Ali requested to take Shared Parental Leave in her place and receive the same benefits as a female employee. Capita rejected this request.

Capita’s relevant maternity policy granted women the right to 14 weeks’ enhanced pay whilst on maternity leave.  However, its shared parental leave policy allowed partners statutory shared parental pay only.  Due to being informed that he was only entitled to statutory pay, Mr Ali raised a grievance stating that he was being discriminated on grounds of sex discrimination and that he should receive the same paid leave entitlement as his female counterparts who had also transferred. The Tribunal ruled that he was entitled to receive the same rights as a woman, due to being the best placed to perform the role of main carer.

This is not the first case of its kind. In 2016, the case of Snell v Network Rail also ruled in the favour of the father, who was awarded almost £30,000. Both Mr Snell and his wife worked for Network Rail and applied to take shared parental leave: 27 weeks for his wife and 12 weeks for himself. Mrs Snell was informed that she would be entitled to full pay for 6 months, whereas Mr Snell was only entitled to the statutory minimum. His grievance was rejected with Network Rail saying that they met their obligations by paying the statutory minimum. The Tribunal decided that he was discriminated against, due to being put at an unfair disadvantage compared to a woman.

In Ali v Capita Customer Management, the Tribunal found that the correct comparator to use was a woman on maternity leave, given that Mr Ali was the person best placed to look after the child in this instance due to his wife’s post-natal depression.  In other cases, the comparator will usually be someone such as the same sex partner of a child's mother who was taking Shared Parental Leave – i.e. someone who is in the same position as the man.

This raises the question as to what is the best practice; firstly when setting up policies for maternity, paternity and shared parental leave, and then dealing with grievances. Whilst these cases are both first instance and are not binding, the outcomes give an indication of the way Tribunals are dealing with these cases.  The Ali case is likely to be appealed which will then provide a binding outcome. In the interim, it is advisable to ensure that the policies are equal for both men and women, so as to avoid any potential discrimination claims. For example, Network Rail has since removed its enhanced policies for maternity pay and reverted it back to statutory pay for mothers, rather than enhance the pay for fathers. This will no doubt cause its own problems with its employees; however, for the purposes of avoiding discrimination, it is an option.

To summarise, we recommend that entitlements to pay in both your maternity and shared parental leave policies are the same, in particular where the parent in question is taking on the same role as the mother. This could help to prevent any future discrimination claim against your business. If you elect to offer differing amounts, then you must be able to justify this decision if challenged and show that the differences in pay are proportionate and legitimate. In a research poll in May 2016, 54.1% of respondents with an enhanced maternity pay policy said that they did not enhance shared parental pay, putting them at a potential risk of a discrimination claim.

Should you require assistance on this matter, please do not hesitate to contact a member of the employment team.

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