20 April 2018 #Employment
The EAT have held that an employer’s failure to pay enhanced shared parental leave (SPL) to a male employee when it did pay enhanced maternity leave to female employees was not direct sex discrimination (our blog on the Tribunal’s earlier decision can be found here).
In Capita Customer Management Limited v Ali and another the Claimant wanted to take leave over and above his two-week paternity leave entitlement due to his wife suffering from post-natal depression. The Claimant was advised that he was eligible for SPL. The Claimant argued that he should be treated the same as a female employee taking maternity leave who would be paid an enhanced amount and as such he should receive an enhanced payment. The Tribunal upheld his claim.
Capita appealed to the EAT which found in Capita’s favour. It held that the purpose of the legislation governing maternity leave was the health and wellbeing of the mother whereas the purpose of the legislation governing SPL was the care of the child. Therefore, the two positions were not comparable and the correct comparator for the Claimant would be a woman on SPL and she would have been given the same treatment and terms meaning there had not been any discrimination.
As an aside the EAT did note that after 26 weeks of maternity leave the purpose may change from the health of the mother and, at that stage, it may be possible to draw a comparison between a father on SPL and a mother on maternity leave.
The decision is useful in clarifying the position on SPL. However, employers should still be aware of the possible implications of the EAT’s side comments. Employers should ensure they have clear policies on SPL and are making reasoned decisions in line with those policies.