Ali v Capita Customer Management Limited
Whether an employer, who fails to match maternity pay enhancements, will face a successful discrimination claim from a man on ShPL has been the elephant in the room for some time. Now an Employment Tribunal decision has addressed this question. The Tribunal found that disparity in policies offering enhanced contractual maternity leave pay to female employees but only offered statutory ShPL pay DID directly discriminate against a male employee, which conflicts with previous case law (see below). This case is the first of its kind to have been won by a man in England since the new Shared Parental Leave laws came into force in April 2015.
Mr Ali worked as a call centre agent for Capita Customer Management. His wife had post-natal depression and as part of her recovery had been advised to return to work. As a result, Mr Ali wanted to take shared parental leave in order to care for his daughter. Capita’s policy was to pay women on maternity leave their full salary for 14 weeks. However, for shared parental leave, Capita only offered a statutory minimum rate of pay. Mr Ali argued that, refusing to pay him the same as a woman taking maternity leave was direct sex discrimination.
The Employment Tribunal agreed with Ali. It accepted that men are being encouraged to take a greater role in child care and Mr Ali was deterred from taking shared parental leave due to the pay discrepancy. He was therefore treated less favourably than a woman in a comparable situation. The judge in this instance commented that choosing who is best placed to care for a child is the parents’ decision and should be free of assumptions that the mother will always undertake the role as primary carer.
Comment: Employment tribunal decisions are 'non-binding' and as such do not set a precedent that future tribunals must follow. Nevertheless, it may be persuasive and an indication of the direction for such claims in the future. Also, Capita Customer Management Ltd are currently seeking leave to appeal this decision but if it is upheld it will have a profound effect on employers and how they approach maternity and shared parental leave.
This case does conflict with previous decisions - an appeal is currently pending before the Employment Appeal Tribunal in Hextall v Chief Constable of Leicestershire Police. Last year in Hextall, a different employment tribunal found an employer's policy of offering enhanced contractual maternity pay but only statutory ShPL pay was NOT discriminatory. The Ali case may therefore be following recent social policy and aims to balance a father’s rights and enable them to be more inclusive to a modern family set up which therefore challenges the traditionally held view that maternity leave is designed to protect a woman's biological condition following pregnancy, or the special relationship between mother and baby. This case suggests maternity leave instead becomes more about simple childcare.