No discrimination in paying less paternity pay than enhanced maternity pay, appeal tribunal rules

16th April 2018

No discrimination in paying less paternity pay than enhanced maternity pay, appeal tribunal rules

It is not discriminatory to set paternity pay at a lower level than enhanced maternity pay, an Employment Appeal Tribunal (EAT) has ruled.

In a case that will have significant implications for parental leave rights, a judge found that the full purpose of paid maternity leave was for “the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth” – and not simply caring for a baby.

The ruling comes after an appeal by Capita following the decision in Ali v Capita Customer Management Ltd. In the original tribunal, Mr Ali successfully claimed for direct sex discrimination against his employer after Capita refused to allow him to take additional paternity leave at full pay.

The case

Mr Ali fell into a dispute with his employer in April 2016 after his wife gave birth to their child and subsequently suffered postnatal depression. His wife was advised to return to work to help speed up her recovery.

However, Mr Ali was only allowed to take two weeks’ leave on full pay followed by 12 weeks’ statutory Shared Paternity Leave (SPL) pay (currently £145.18 a week), despite female staff being allowed to take 14 weeks’ maternity leave on their full salary.

The tribunal found in favour of his direct discrimination claim on the grounds that the “caring role he wanted to perform was not a role exclusive to the mother”.

The appeal

The EAT held that the tribunal was wrong to rule that the purpose of maternity leave and pay after two weeks (the compulsory maternity leave period) is for the care of the child.

That finding was contrary to the purpose of the Pregnant Workers Directive, which requires that women receive statutory maternity leave and pay for a minimum of 14 weeks.

The Directive makes it clear that maternity leave and the pay associated with it are for the health and wellbeing of a pregnant woman, one who has recently given birth and/or who is breastfeeding.

In the EAT’s view, Mr Ali’s circumstances were not comparable to a woman who had recently given birth. The correct comparator was instead a woman on Shared Parental Leave, who like Mr Ali, would only receive statutory SPL pay under the employer’s policy.

Marie Allen, of Gotelee Solicitors, said ‘Whilst the finding of the EAT is legally sound, on these particular facts it is questionable whether, in fact, the application of the law achieved the purpose of supporting “the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”. Mrs Ali was advised that it was in the interests of her health to return to work. You can envisage situations where women faced with this scenario might be dissuaded from returning to work, if this would result in a reduction of the global family income.’

Shared Parental Leave

The introduction of Shared Parental Leave in April 2015 was intended to bring about a culture change around child care. The idea was it would allow men to take a greater share of parental responsibility and create a fairer and more gender balanced workplace.

However, according to a report published by the Government’s Women and Equalities Committee called Fathers and the Workplace, uptake has been low – only around 2% – and the cultural shift that was hoped for has failed to materialise.

Meanwhile, a survey by comparison site money.co.uk found that only 16% of fathers who had a child in the last five years took additional time out of work above the statutory minimum after the birth of their baby.

How can Gotelee help?

Understanding your responsibilities as an employer when it comes to maternity and paternity leave pay can be complex. Our expert lawyers will ensure your organisation is up to speed on the rules and avoids the potential for staff disputes.

To find out more, call us on 01473 298126 or visit us at one of our offices in Ipswich, Hadleigh, Felixstowe, Melton or Woodbridge.

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