Is failure to enhance shared parental pay discriminatory towards men?

Capita Customer Management Ltd v Ali and another UKEAT/0161/17

Shared parental leave has not been considered as popular as expected,  nor made the sort of impact that the Government had hoped, probably because employers that enhance maternity pay are not legally obliged to enhance shared parental pay in the same way.

However, this case explores whether or not it is sex discrimination for employers to enhance pay during maternity leave, but not during shared parental leave.

In this case, a male worker (Mr Ali) claimed that his employer discriminated against him because of his sex by denying him the opportunity to take shared parental leave on full pay. Mr Ali failed at the Employment Appeal Tribunal (EAT) stage.

The tribunal (and appeal court) in this case concluded that there was no valid comparison between a man on shared parental leave and a woman on maternity leave; the correct comparator was a woman on shared parental leave.  It held that maternity leave and pay is for the health and wellbeing of the mother. By contrast, the purpose or reason for shared parental leave is for the care of the beneficiaries' child.

Mr Ali has appealed to the Court of Appeal. A finding of sex discrimination could force employers to reconsider their policies if they provide shared parental pay at the statutory level, but offer increased contractual maternity pay.

The appeal is likely in early 2019 so watch this space.

Posted on 6 March, 2019 by Ortolan

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