Developments in the law of shared parental leave and pay in the case of Ali v Capita Customer Management Ltd.
The recent Employment Tribunal case of Ali v Capita Customer Management Ltd has brought to light an interesting development in the law of shared parental leave and pay.
Mr Ali won his sex discrimination claim after arguing that it was directly discriminatory on the grounds of sex to assume that a man caring for his baby was not entitled to the same contractually enhanced pay whilst on shared parental leave as a woman performing the same role; and that failure to provide him with the same level of pay effectively took away the choice that he and his wife wanted to make as carers for their baby.
According to the employer’s policies, as a male employee, Mr Ali was entitled to only two weeks’ paid leave following the birth of his child in April 2016; whereas a comparable female employee would have been entitled to 14 weeks’ paid leave in the same circumstances.
The Employment Tribunal agreed with Mr Ali that he could compare his treatment with a hypothetical female employee who had a baby in February 2016, taking leave to care for her child after the two-week compulsory leave period even though he had not given birth. Mr Ali could claim sex discrimination by reference to the more favourable treatment that would have been given to that female colleague. It was accepted that he was denied the benefit that his female comparator would have received; was deterred from taking the leave; and was less favourably treated than she would have been. The reason why Mr Ali was treated less favourably was his sex.
The Tribunal commented:
“In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents but the choice should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”
Our thoughts
As this is an Employment Tribunal decision (rather than an Employment Appeals Tribunal decision), technically, it is not binding on future Employment Tribunals however it may well be influential on future cases involving contractually enhanced pay entitlement whilst on family related statutory leave. Whilst employers may decide not to rush to change policies on shared parental leave, this decision is an indication of possible Employment Tribunal attitude to the issue, and developments in this area of law should be carefully monitored.
If you have any questions about shared parental leave or pay, please get in touch with a member of our Employment Law Team using the details below.
