2018 promises some interesting judgments. Here are two cases to keep an eye on - both sex discrimination cases involving new fathers, which will be of importance to both male and female employees planning to have children.
These cases will scrutinise the shared parental leave regime and specifically whether denying male employees the chance to receive enhanced pay whilst taking shared parental leave is sex discrimination. In both of these cases, enhanced pay would have been paid to a woman taking maternity leave.
Ali v Capita Customer Management Ltd
Mr Ali took the usual two weeks of statutory paternity leave available to all fathers in employment, after the birth of his daughter. He asked Capita, his employer, if he could then commence Shared Parental Leave at the end of paternity leave and receive enchanted Shared Parental Pay. Women who worked for capital were entitled to not only enhanced Maternity pay, but also enhanced Shared Parental Pay for 14 weeks. Mr Ali was told that he could take the additional leave but would not get the enhanced rate of pay - instead being paid at the statutory rate. He decided not to take the leave and issued a claim at the Employment Tribunal for sex discrimination - and won. Interestingly, despite Mr Ali being unable to compare himself directly with a female comparator (as, quite plainly, he had not given birth), the Employment Tribunal concluded that (save for the first two obligatory weeks of maternity leave), the refusal of enhanced pay for Mr Ali amounted to direct sex discrimination.
Last week, the Employment Appeal Tribunal ruled that Mr Ali was not directly discriminated against. The EAT concluded that Mr Ali’s attempts to compare himself with a woman on maternity leave were fatally flawed as the purpose of maternity leave is for protection of the mother’s health and wellbeing – and in contrast, the purpose of the shared parental leave regulations is the care of the child.
Hextall v The Chief Constable of Leicestershire Police
In this case, the Employment Tribunal reached the opposite conclusion. The Employment Tribunal was severely critical of Mr Hextall’s efforts to compare himself with a female officer on maternity leave. The Employment Appeal Tribunal is due to hear this appeal shortly.
If the judgement in Hextall follows the direction of travel in Ali, the judgements will be welcomed by employers who may have feared having to enhance paternity or shared parental leave for fathers to the same level as mothers are entitled to enjoy.
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