In Capita Customer Management Limited v Ali, Ali complained that as a male employee, under the policy relating to parental leave and maternity leave, he was entitled to only two weeks paid leave following the birth of his child, whereas a female employee, would be entitled to 14 weeks’ full pay following the birth of her child. Ali argued that after the 2 weeks compulsory leave a woman must take post-birth, either parent could care for their baby, but in the following 12 weeks, he would only receive statutory pay, not full pay, which was direct sex discrimination. An ET upheld Ali’s claim on the basis that he could compare his treatment with that of a female employee taking maternity leave, even though he had not given birth, and the difference in the level of pay was less favourable treatment because of his sex. The EAT upheld the employer’s appeal. A comparison has to be made in like-for-like circumstances. Therefore, the comparator is not a woman on maternity leave, but a woman on shared parental leave. As a woman on parental leave would have received exactly the same level of pay as Ali, the inevitable conclusion is that there had been no discrimination because of sex.

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