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Failure to pay enhanced shared parental leave was direct sex discrimination

16 June 2017 #Discrimination

In Ali v Capita Customer Management Ltd, a father succeeded in his claim for direct sex discrimination when he was told that shared parental pay only entitled him to 2 weeks full pay following the birth of his child and not the 14 weeks granted to women on maternity leave.

It was accepted by all that the first two weeks’ maternity pay (the compulsory element) attracted special protection (and, in any event there would be no detriment here as parental leave entitles partners to two weeks’ leave at full pay). However, Mr Ali argued that, after this time, it was the parents’ choice who had time off to care for their child and that men and women should be treated equally in this regard.

The Tribunal agreed with Mr Ali, stating that “It was not clear why any exclusivity should apply beyond the 2 weeks after the birth. 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 depending on their personal circumstances but the choice made 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.”

This case has left us with conflicting Tribunal decisions, as the earlier case of Hextall v Chief Constable of Leicestershire Police, ruled that is was not discriminatory to pay enhanced maternity pay but only statutory shared parental pay. It’s understood that both cases are being appealed and so it’s hoped that an appellate decision will clarify the position.  In the meantime, employers would be wise to run a risk assessment on their policies in the event that the decision in Ali prevails.

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Louise Merrell

Louise Merrell
Senior Solicitor

E: lmerrell@clarkslegal.com
T: 020 7539 8082
M: 0779 900 7325