In Ali v Capita Customer Management Limited, an Employment Tribunal has ruled in favour of a father who claimed that paying enhanced maternity pay to female employees, but not enhanced shared parental pay to male employees, was direct sex discrimination.

Mr Ali took two weeks' paid paternity leave immediately after the birth of his daughter. Whilst on paternity leave, he informed Capita that his wife was suffering from post-natal depression. Since his wife was medically advised to return to work to assist her recovery, Mr Ali requested further time off to care for his daughter. Capita informed him that he was eligible for shared parental leave (SPL), but that he would only receive statutory shared parental leave pay. Since Mr Ali's female colleagues who took maternity leave were entitled to 14 weeks' full pay, he brought a grievance alleging that he should receive the same entitlement as female employees. The grievance was rejected, and Mr Ali then brought various claims in the Employment Tribunal, including a claim for direct sex discrimination.

Under the Equality Act 2010, in determining whether a man has suffered sex discrimination, no account can be taken of special treatment afforded to women in connection with pregnancy or childbirth, if that treatment is reasonably necessary to remove the disadvantage suffered by those women. It was accepted by both Mr Ali and Capita that the compulsory maternity leave period of two weeks amounted to special treatment afforded to women in connection with pregnancy or childbirth, since its aim is to help with recovery after childbirth. This meant that Mr Ali could not claim sex discrimination in respect of that two week period.

However, the Tribunal rejected Capita's argument that the full 14 week maternity leave period was also connected with giving birth and therefore amounted to special treatment. It held that after the compulsory maternity leave period, Mr Ali could compare himself with a hypothetical female colleague on maternity leave because men and women are in the same position with respect to caring for babies. The Tribunal emphasised that looking after a baby is not a role exclusive to mothers, particularly as men are being encouraged to play a greater part in childcare, and mothers should not receive more pay because of a generalised assumption that they are best placed to undertake that role. In this case, Mr Ali was best placed to care for his baby, given his wife's post-natal depression and her need to return to work. Since a female colleague would be entitled to full pay for 14 weeks, whilst Mr Ali was only entitled to statutory pay, the Tribunal concluded that this was direct sex discrimination.

This is only an Employment Tribunal decision, and is therefore not binding in other cases. It should also be noted that other Tribunals have reached contrasting decisions. Since both men and women can take SPL, there is a strong argument that the correct comparator is a female colleague taking SPL. For example, in Hextall v Chief Constable of Leicestershire Police, a male police officer was unsuccessful in his claim that he should receive full pay for SPL because the Tribunal held that the correct comparator was a female officer on SPL rather than maternity leave. In Hextall, the Tribunal highlighted significant differences between maternity leave and SPL, and took the opposite view that maternity leave and maternity pay do amount to special treatment afforded to women in connection with pregnancy or childbirth, which is justifiable given the financial and work-related disadvantages suffered by new mothers. We understand that both the Hextall and Ali cases are being appealed, which should result in welcome clarification for employers on these issues.

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