Employment Law Speed Read – 16/04/18
16th April, 2018
This week we look at an Employment Appeal Tribunal (EAT) case which determined that it was not discriminatory to refuse a father the same rights as a new mother after the birth of a child.
Father refused enhanced shared parental pay was not discriminated against
The Equality Act 2010 stipulates that sex discrimination occurs where a person (A) treats another (B), less favourably than A treats or would treat others because of B’s sex.
However, section 13(6)(b) of the Equality Act provides that in the case where B is a man, no account is to be taken of special treatment afforded to women in connection with pregnancy or childbirth. The Courts have held that this means that women should only be treated more favourably than men, where it is reasonable to do so in order to remove the disadvantages caused by their condition.
Mr Ali was employed by Capita Customer Manager Ltd (Capita) after he TUPE transferred from Telefonica.
In February 2016, Mr Ali’s wife gave birth to a daughter, and Mr Ali immediately took his two weeks’ ordinary paternity leave. When his wife was diagnosed with post-natal depression and advised to return to work, Mr Ali decided he would stay at home to care for the baby.
Capita informed Mr Ali that under their policy, he was entitled to take Shared Parental Leave (SPL) but would only be entitled to statutory pay. Mr Ali argued that he should be entitled to the same amount of remuneration that female employees received under the enhanced maternity pay policy. Under this policy, women on maternity leave were provided with full basic pay for 14 weeks, followed by 25 weeks of statutory pay.
Capita informed Mr Ali that he would not receive full pay if he took leave, but would be paid at the statutory rate, which a woman would also receive if she took SPL. Subsequently, Mr Ali brought claims of sex discrimination against Capita to the Employment Tribunal (ET).
The ET found that Capita had committed direct sex discrimination, as the refusal to provide Mr Ali with enhanced pay amounted to less favourable treatment because of his sex.
The ET held that Mr Ali could compare himself with a hypothetical woman who had given birth, after the two weeks’ compulsory maternity period had passed as they would both be taking leave to care for their baby. This was because two weeks’ compulsory maternity leave was associated with the recovery of the mother after childbirth.
The ET held that section 13(6)(b) of the Equality Act did not prevent the comparison, and the enhanced redundancy pay was not special treatment in relation to pregnancy and childbirth, but instead was special treatment for caring for a baby.
Employment Appeal Tribunal
The EAT found for Capita and held there had been no sex discrimination. The EAT found that the ET had erred in deciding that the purpose of maternity leave, after the two-week compulsory period, was no longer associated with recovery from childbirth, but was for care of the newborn child. The purpose of the maternity leave legislation was to promote the wellbeing and health of the mother and these reasons were not applicable to men.
The EAT noted that the correct comparator was a woman on SPL (not a woman on maternity leave), and consequently, as women and men were given SPL on the same terms Mr Ali had not been discriminated against.
Finally, the EAT held that the ET had erred in finding that the maternity pay, which was higher than SPL, did not fall within section 13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.
This decision by the EAT has clarified the conflicting case law in this area which has caused confusion for employers about whether they should be providing SPL in line with their enhanced maternity policies.
The decision should be welcomed by employers as the position is now clear: employers will not be committing sex discrimination if they provide enhanced maternity leave, but do not provide enhanced SPL as long as they provide SPL on equal terms for both sexes.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.