Father wins shared parenting sex discrimination case | Paul Doran Law

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Father wins shared parenting sex discrimination case

Mr Ali worked for Telefonica. When he was transferred to Capita Customer Management Ltd, Telefonica’s policies transferred with him.

Under Telefonica’s policies, female employees with 26 weeks’ service are entitled to 14 weeks’ enhanced maternity pay followed by 25 weeks’ statutory maternity pay. However, new fathers are only entitled to two weeks’ paternity leave on full pay.

After giving birth, his wife suffered post-natal depression and was advised to return to work to aid her recovery.

For the first two weeks after their baby was born, Mr Ali took paternity leave at full pay, followed by some annual leave.

When he went back to work, HR told him he was entitled to shared parental leave with statutory shared parental pay. He raised his concerns with his CWU representative.

In the employment tribunal, Mr Ali claimed direct sex discrimination, arguing that male employees should be given the same right as female employees – that is, 12 weeks’ leave on enhanced pay after the first two weeks.

The tribunal accepted that men are being encouraged to play a greater role in caring for their babies, and it shouldn’t be assumed that the mother is always best placed to undertake the role of primary carer.

They decided that Mr Ali should get full pay, as he was in a better position to look after the baby due to his wife’s post-natal depression.

Mr Ali therefore won his sex discrimination case. It has been reported that Capita plan to appeal.

Has this happened before?

There is no binding legislation or case law that requires employers to enhance shared parental pay if they enhance maternity pay.

In the case of Hextall v Chief Constable of Leicestershire Police, the tribunal decided it was NOT discriminatory to give a period of full pay to mothers on maternity leave while paying statutory shared parental paid to partners.

In the case of Snell v Network Rail, the employer conceded that mothers getting full pay on shared parental leave while their partners receive statutory shared parental pay amounts to indirect sex discrimination against men. The tribunal awarded £28,321 to the claimant.

There has not yet been a case where female partners or grandparents have taken the role of primary carer during shared parental leave and claimed the right to enhanced pay.

As you can see, it’s an unclear area. So, if this situation applies to you, please contact us for expert help and advice.

How many employers enhance shared parental pay?

Accepting that the mother is not always the primary carer for the newborn child, the door is now open for anyone to claim that shared parental pay should mirror maternity pay.

Here’s a snapshot of the situation last year:

Source: XpertHR research (May 2016)

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