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The Battle Around Occupational Pay for Shared Parental Leave Continues

Posted on April 24th 2018 by

The recent case of Capita Customer Management v Ali has highlighted that, despite recent encouragement for new fathers to consider taking shared parental leave following the birth of their child, they still do not have equal rights with mothers to provide care to their new born under Occupational Maternity Pay schemes..

Background

Mr Ali’s wife ended her maternity leave two weeks following the birth of their child, and made the decision to transfer the balance of her maternity leave to him under the statutory shared parental leave scheme. Her decision stemmed from a diagnosis of post-natal depression, and a recommendation from medical practitioners that a return to work would aid her recovery.

Mr Ali was willing to oblige, and following his two weeks of paternity leave, Mr Ali sought advice from HR on how to proceed.

HR confirmed that Mr Ali was within his rights to take shared parental leave, as requested. However, over the course of the shared parental leave period, he would be entitled to statutory shared parental pay only.

Mr Ali’s employer gave 14 weeks’ basic pay (occupational maternity pay)  for women on maternity leave. As a result, he argued that he should be entitled to the same while on shared parental leave (accepting that he had already received 2 weeks’ full pay whilst on paternity leave). Ultimately, Mr Ali was seeking to claim the remainder of his wife’s maternity leave and pay entitlement whist taking shared parental leave. However, his employer refused.

Mr Ali argued that a failure to match a mother’s entitlement in these circumstances equated to unlawful sex discrimination.

Decision

Mr Ali’s argument was successful before the original employment tribunal, who asserted that the role of primary carer was a matter of choice for the parents, which should be free of assumptions that the mother is always best placed to perform the primary care giving role and should receive full pay.

However, the EAT did not accept his position, and highlighted that the purpose of maternity leave and pay was fundamentally to protect the health of a mother.

In the EAT’s view, this was contrasting to the primary purpose of shared parental leave, which they held was for the care of a child.

For this reason, the appropriate comparator was not a mother taking maternity leave, but a mother taking shared parental leave (since it was available to both sexes).

Therefore as a woman taking shared parental leave would not be eligible for enhanced pay, Mr Ali’s claim of direct sex discrimination failed.

Practical Implications

Whilst employers will be pleased to hear this turn in events, the decision will inevitably discourage the uptake of shared parental leave by fathers. This in turn will further solidify the view that women are the primary carers following childbirth.

However, this decision is purely in respect of support given to women during ordinary maternity leave. As a result, it is possible that tribunals may take a different approach in relation to additional maternity leave, where it could be argued that the purpose of the leave is entirely different.

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