The recent case of Ali v Capita Customer Management Ltd called into question if a father is entitled to receive the same rate of pay as a female employee on maternity leave, and if not matching the pay amounts to sex discrimination. The Court of Appeal’s final decision, however, is that this is not the case – and here’s why.
The case
After Mr Ali’s wife was diagnosed with postnatal depression, she was advised to return to work. In order to facilitate this Mr Ali requested shared parental leave from his employer, Capita Customer Management Ltd, so that he could remain at home and care for their baby. His employer granted this request, and his wife was able to return to work.
However, Mr Ali soon became aware that female employees who were taking maternity leave received their enhanced maternity pay, amounting to 14 weeks’ full salary. As a result, Mr Ali requested that he too receive his full salary for 14 weeks, rather than the statutory amount paid to those on shared parental leave.
Mr Ali’s request was denied – Capita Customer Management Ltd stated that under the current legislation, he was only entitled to the statutory rate of pay whilst on shared parental leave. Following this, Mr Ali submitted a formal grievance in which he alleged sex discrimination.
As part of his claim, Mr Ali stated that he understood that the purpose of compulsory maternity leave was primarily for the wellbeing of a mother following childbirth – therefore he was not trying to compare himself to a mother who had recently given birth. Rather, Mr Ali claimed that it was granting female employees enhanced maternity pay for the following 12 weeks, whilst not offering the same enhanced salary to male employees under shared parental leave, that amounted to sex discrimination.
Judgement
The Court of Appeal ruled that there is a fundamental difference between maternity leave and shared parental leave, and thus the disparity in pay between the two cannot amount to discrimination. It noted that the entire period of maternity leave “is for more than just facilitating childcare”, as the health and wellbeing of the mother is a primary concern. Parental leave, in contrast, is primarily for the purpose of facilitating childcare arrangements for new-born children.
As a result, there is a material difference between these two forms of leave, and Mr Ali was incorrect in equating himself to a woman on maternity leave for the purposes of a sex discrimination claim. Rather, the correct comparator for this type of claim would have to have been a female employee on shared parental leave. As a female employee on shared parental leave would receive the same statutory pay as a male employee, there is no ground for claiming discrimination based on sex alone.
Important takeaway points
The Court of Appeal’s decision may seem, initially, counterintuitive to our undertsnading of discrimination legislation. However, it is important to remember the very real differences between a mother who has recently been through childbirth and their spouse or partner, and it is understandable that this difference is reflected within employment law. Likewise, there may also be public policy reasons behind this disparity in pay – if the Court had ruled that shared parental pay must match enhanced maternity pay, for example, then employers may become deterred from offering this enhanced pay at all.
