Important appeal decision on shared parental leave and direct sex discrimination.

An Employment Tribunal decision which ruled that it was direct sex discrimination to have different enhanced maternity pay rates for female employees compared to payments on offer for male employees has been dramatically overturned by the Employment Appeal Tribunal.

In Ali -v- Capita Customer Management Limited  2017 (UKEAT/0161/17/BA) the Employment Tribunal originally ruled that it was direct sex discrimination against a male employee who was only allowed two weeks’ leave on full pay compared to 14 weeks’ for female employees.

The facts of this authority involve Mr Ali’s wife who had been signed off sick with post-natal depression being advised to return to work to help improve her medical condition.   Mr Ali needed to take time off for child-care and was allowed to take up to two weeks’ paternity leave on full pay following the birth of his child.     This compared to female members of staff who could take enhanced maternity pay of up to 14 weeks’ on full pay.

The Employer – Capita Customer Management Limited,  decided to appeal the decision to the employment appeal tribunal and were successful.   The Employment Appeal Tribunal found that the original Employment Tribunal had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a female employee who had recently given birth where both had to care for their new-born child.

The Employment Appeal Tribunal went on to clarify that the purpose of maternity pay and maternity leave is to recognise the health and well-being of  woman in pregnancy, confinement, and after recent childbirth and that such things can only be experienced by women.

Accordingly, payment of maternity pay at a higher rate falls under Section 13(6)(b) Equality Act 2010 as special treatment afforded to women in connection with pregnancy or childbirth.

The arguments in favour of the Employment Appeal Tribunal’s decision are that maternity leave is an important historical safe-guard for women which cannot be equated with ‘child-care’ which is what paternity and parental rights are designed to promote.  Whilst these family friendly rights for working fathers, for example paid parental and paternity leave are important, they should compliment and not undermine the rights of working mothers – in this instance the right to receive maternity pay.

Another school of thought is that if the original decision had not been overturned then many Employers forced to pay the same benefits to men and women on shared parental leave,  would modify or stop offering enhanced maternity pay altogether.

However equally there are valid arguments to suggest that the decision does nothing to promote the involvement of fathers in child-care arrangements or to promote the equality of both parents being involved in such child-care arrangements.  This was after-all the purpose for introducing the legislation.

The only real way that the rights of fathers can be improved is for the Government to legislate further and to introduce higher rates of parental and paternity pay which will encourage them to take up these arrangements.

Currently affordability is an obstacle for many fathers and always has been on the basis that they simply cannot justify taking time off where it will impact and reduce their income at a time when they need as much financial support as possible, and where such family friendly rights are only  payable at capped statutory rates of pay.

Some small employers will also argue that they cannot afford to pay fathers at enhanced contractual rates or higher rates of pay and therefore the Government should consider re-imbursing these costs, although in such circumstances any such burden will ultimately fall onto the tax-payer.

This is a delicate area for both men and women at a time when equality issues in the work-place are in the spot-light.  However it would seem that the Employment Appeal Tribunal’s rationale and approach is correct in distinguishing between the purpose of maternity rights compared to other family friendly rights and that common sense has prevailed.

If you have any questions relating to your maternity and other family friendly policies then please contact Steven Eckett at Meaby&Co for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

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