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Denial of full pay for father taking parental leave was direct sex discrimination

Makbool Javaid

In Ali v Capita Customer Management Limited, Ali (‘A’) complained that as a male employee he was entitled to only two weeks paid leave following the birth of his child in April 2016, whereas a female employee who had transferred from Telefonica, would be entitled to 14 weeks’ pay following the birth of her child. ‘A’ accepted there was a difference in circumstances because of the justified special treatment of a hypothetical female employee for the first two weeks of that leave because the mother, was required to take ‘compulsory maternity leave’ related to her biological/physiological condition and recovery following childbirth. However, in that 2 week period, he was also paid his full pay for taking parental leave, so was not less favourably treated in relation to his pay/leave.

But in the following 12 weeks, when he wanted to take leave with pay, in order to care for his baby daughter, because his wife was suffering with postnatal depression, he was deterred from taking the leave because he was told that as the father he would only receive statutory pay, not full pay for that leave. He argued that after the 2 weeks compulsory leave either parent could care for their baby, depending on the choices made by the parents and their particular circumstances. The assumption made that as a man caring for his baby, he was not entitled to the same pay as a woman and so took away the choice he and his wife wanted to make as parents for their baby. This, he argued, was direct discrimination on the grounds of sex and was not a valid assumption to make in 2016.

The ET upheld ‘A’s claim. ‘A’ could compare his treatment with that of a female Telefonica transferred employee who had a baby, taking leave to care for her child after the 2 week compulsory leave period, even though he had not given birth. In that period ‘A’ was denied the benefit of 12 week’s leave at full pay and was deterred from taking the leave and therefore treated less favourably because of his sex. In the 12 week period, no special treatment arose in connection with pregnancy or childbirth giving the female comparator the right to full pay. In 2016, men are being encouraged to play a greater role in caring for their babies. In these particular circumstances ‘A’ as the father was best placed to perform that role given his wife’s post-natal depression. He was asking for the leave to perform the same role his female comparator would have performed with full pay.

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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