18 September 2019 - Article
An employment tribunal has found that a man who received pay at statutory shared parental pay rates when he was caring for his baby daughter in the weeks following her birth, when a woman would have received enhanced maternity pay for the same period, was subjected to direct sex discrimination by his employer, Capita Customer Management Limited.
The claim was brought by Mr Ali, whose wife was diagnosed with postnatal depression soon after the birth of their baby and was advised to return to work. Mr Ali's employer told him that he could take shared parental leave but that he would be paid only at the statutory weekly rate. He brought a grievance with the support of his union, complaining of sex discrimination and arguing that had he been a woman on leave who had just given birth he would have been entitled to enhanced pay for 14 weeks. The grievance was not upheld and Mr Ali brought a claim to the employment tribunal.
The employment tribunal accepted that Mr Ali could compare his treatment with that of a hypothetical woman who had taken maternity leave from Capita even though he himself had not given birth. It also reasoned that it was only the two week period immediately after giving birth that is reserved uniquely for women and there was no need for women to benefit exclusively from a longer period of full pay. Its reasoning about this point could be challenged however and is difficult to reconcile with the position under EU law, which treats women as in a unique position for the minimum 14 week period guaranteed by the Pregnant Workers' Directive. Further, it is not clear how much of an influence the circumstances of the mother's postnatal depression and earlier than expected return to work were on the reasoning.
It would be useful however to see a more fully reasoned decision on the issues raised by the case and we understand that Capita is appealing the decision. European law has long recognised the uniqueness of women's childbearing role and provided protection accordingly. However as the role of men in the early years of their children's lives increases, the need to balance the rights of men and women in this area of the law will come under increasing scrutiny. In one Spanish case in 2009 (Roca Alvarez) for example, the European Court of Justice ruled in favour of a man who had to meet more stringent conditions than a woman in order to benefit from time off to bottle feed his baby. It ruled that Spanish legislation that had initially been introduced to promote breastfeeding had subsequently been amended to include bottle feeding. While it allowed a mother to take the time off if she were an employee, it only allowed a father to take the time off if both he and the mother were employees. The ECJ ruled that this different treatment of men and women could no longer be justified as a means of protecting new mothers or of reducing any inequality suffered by women in the workplace, and in fact was liable to perpetuate traditional gender roles.
In light of the decision in Ali employers might want to review their policies on pay to men and women after the arrival of a new baby. If they provide enhanced pay to mothers taking maternity leave but only statutory pay to men who need for whatever reason to take leave in the early weeks of the child's life, they may face a challenge, even if ultimately the appeal in this case is successful. In fact Mr Ali did receive full pay during his two weeks of statutory paternity leave – and he accepted that there was no discrimination as regards those two weeks. His complaint was that he would have been denied full pay if he had switched to shared parental leave.
One approach, taken by many employers, is to provide a specified number of weeks of enhanced pay for all parents to be taken either immediately after the birth or at a time of their own choosing. That approach avoids arguments about the limits of the special protection afforded to women, by conferring equal entitlements on all employees.
Government guidance (which is not legally binding) indicates that employers do not need to enhance shared parental pay to match any enhanced maternity pay – although this guidance was referred to in the case above and effectively rejected. Nevertheless, you may wish to wait until the outcome of the appeal before making any changes to your policies. If so, to mitigate the risk of disputes you should carefully consider any request for shared parental leave if it is for a period for which a woman on maternity leave might be eligible for enhanced pay.