Earlier this month the TUC published research showing that over one quarter of the UK’s 625,000 working fathers did not qualify either for statutory paternity leave or paternity pay.
There has also recently been a focus on the relatively poor take up of Shared Parental Leave by couples since its introduction in 2014. The reasons are varied from the fact that a proportion of working fathers are self-employed, to the fact that they are less likely to take leave if they are low paid. The low take up of shared parental leave (which is available to heterosexual and same sex couples) may also be compounded by the fact that a large number of employers will only pay statutory shared parental pay to employees, while they may pay enhanced maternity pay to female employees. However in the recent decision of the Employment Tribunal in Ali v Capita Customer Management Ltd the Employment Tribunal held that it was direct sex discrimination to pay a male employee less when taking shared parental leave, than a female on maternity leave.
What are the different types of discrimination?
There are two different forms of discrimination that can be present: direct and indirect. Direct discrimination occurs where an individual has been treated unfavourably as a direct result of one of the 9 protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Indirect discrimination, however, occurs where a particular group of people are disadvantaged as a result of a provision, criterion or practice which on the face of it is applied to everyone equally but which puts a particular class of individual at a disadvantage.
Direct discrimination cannot be objectively justified by an employer (with the exception of direct age discrimination), whereas it is possible to objectively justify indirect discrimination.
What was the decision?
In Ali v Capita Customer Management Ltd, the Employment Tribunal held, in contrast to a previous case of Hextall v Chief Constable of Leicestershire Police, there was direct discrimination present where a woman was paid more than a man for taking time off work to look after their new born baby.
The company who Mr Ali worked for stated that women on maternity leave were entitled to 14 weeks at their normal pay, followed by 25 weeks of statutory maternity pay. However, it was stated that male employees were only entitled to 2 weeks of paid ordinary paternity leave followed by up to 26 weeks shared parental leave which ‘may or may not be paid’.
Although there is a statutory duty that women must not return to work within the first two weeks after giving birth, the period following this is now open to both parents to split between them as they deem to be the best for their family through the option of shared parental leave.
It was therefore argued in this case that Mr Ali should have been paid the same as a female employee would have been entitled to and there should be no difference in pay on the basis that they would both be doing the same task of looking after, and spending time with, their new born child. This was on the basis that as it is up to the parents to decide between themselves how to split the shared parental leave, offering different levels of pay to men and women was direct discrimination.
In the previous decision of Hextall v Chief Constable of Leicestershire Police it was held that there could be no comparison made between a woman taking maternity leave and a man taking shared parental leave. That is because both men and women can take shared parental leave and therefore the starting point for comparing the shared parental leave for a man would be the shared parental leave available for a female partner of the woman giving birth (i.e. wife or civil partner). This was held to mainly be due to the fact that maternity leave is significantly different to shared parental leave. The reasons for this were that:
- maternity leave can be taken prior to the birth of the baby whereas shared parental leave can only be taken after;
- it is compulsory to take at least two weeks maternity leave after the birth of a child whereas shared parental leave is completely voluntary; and
- shared parental leave can only be taken with the consent of the other parent; there is no consent necessary for maternity leave as it is a statutory obligation.
Consequently, it was held that it was not possible to make a comparison between women on maternity leave and men on shared parental leave and that there was therefore no indirect discrimination present.
With regards to a claim for direct discrimination, it was held that the differing treatment of Mr Hextall was not to do with his gender. Additionally, the Equality Act 2010 states that women are permitted to be afforded special treatment in relation to childbirth and therefore it was considered that there was no occurrence of direct discrimination.
What does the Ali decision mean for employers?
Owing to the completely different stances from both cases, there is clearly some confusion as to whether men can make a claim for discrimination on the basis of not being entitled to as much pay after they have had a baby as women.
It is believed that both of these cases are now being appealed. These appeals should hopefully bring about a more definitive answer as to the correct approach for this issue and make it easier for employers to understand how much should be paid for maternity leave and shared parental leave. In the meantime employers should start to look at their family friendly policies, and in particular their position on enhanced pay during such periods, and decide whether to treat both genders the same when taking similar types of leave.
Noele McClelland is a Partner in our specialist Employment Law team in Dundee. If you are looking for Employment Law advice, please contact Noele on 01382 229111 or alternatively contact any member of our Employment Law Team.
