Despite recent calls to encourage fathers to take up shared parental leave, the Employment Appeal Tribunal (EAT) has delivered a devastating blow to their fight to have equal rights with mothers to care for their new born child.  In the case of Capita Customer Management Ltd v Ali, the EAT concluded that failing to enhance shared parental leave, when employers offer enhanced maternity pay, is not direct sex discrimination against men.

By way of background, Mr Ali requested time off work to care for his child. Following his two weeks of paid paternity leave, Mr Ali sought to claim the remainder of his wife’s maternity leave and pay entitlement (14 weeks full pay and 25 weeks Statutory Maternity Pay) as shared parental leave (SPL). Capita refused and Mr Ali claimed direct discrimination on the grounds of his sex under the Equality Act 2010.

Capita argued that because childbirth is unique to women, the situation was not comparable and could not therefore be discriminatory. While the Employment Tribunal (ET) at first instance recognised the unique status of childbirth, it differentiated between the act of child birth and the two week compulsory leave period following childbirth to ensure the mothers' health and wellbeing, (reserved solely for the mother), with the period that followed thereafter, principally used to care and bond with the child. In making this distinction, the ET concluded that Mr Ali could compare himself after the two weeks compulsory leave period with a hypothetical female comparator on maternity leave, as both would be taking leave to look after their child.

It is worth noting that in reaching its decision, the ET paid no attention to the decision of Hextall v Chief Constable of Leicestershire Police, which rejected claims of direct discrimination on the basis that the correct comparator to a man claiming SPL could only be a woman claiming SPL, not a woman on maternity leave. It did however have regard to the objective behind the legislation, which was to encourage men to play a greater role in childcare.

Capita raised a number of points on appeal, and in relation to the finding of direct sex discrimination, asked the EAT to consider whether payments for maternity leave and shared parental leave were comparable?

In answering this question, the EAT referred back to legislation which provided women with a minimum of 14 weeks paid maternity leave and concluded that this provision was to promote the health and well-being of the mother, and was not just to do with the care of the child. As such, this type of leave was not comparable. The EAT also noted that the correct comparator was another woman utilising shared parental leave (since it was available to both sexes) and not maternity leave. For good measure, and as a final blow to equality for fathers seeking to share parental leave, the EAT confirmed that the payment of maternity pay at a higher rate was justified under the exemption in the Equality Act 2010, which allows special treatment to a woman in connection with pregnancy or childbirth.

While the decision is potentially good news for employers who offer enhanced maternity leave packages but do not extend the enhancement to male employees looking to take shared parental leave, it will inevitably discourage the uptake by fathers of shared parental leave, and reinforce the view of women as primary carers in the workplace.

If you would like to discuss this issue further, please get in touch with me or your regular contact in the Burness Paull employment team.

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