Well it can be according to a recent Employment Tribunal decision. In the case of Ali v Capita Customer Management, the Leeds Employment Tribunal decided that Mr Ali was directly discriminatory against because of his sex on the basis that if he took a period of Shared Parental Leave he was not entitled to be paid full pay for the same period of time that a female employee working for the same employer would have received full pay after their child was born.

Mr Ali was entitled to 2 weeks leave at full pay after the birth of his child. Capita compared this to the 2 weeks’ compulsory maternity leave which a female employee is required to take by law and which Capita paid at full salary rate and the Tribunal was satisfied that there was no discrimination for this period.

However, Mr Ali argued that after this initial 2 week period, it should be up to the parents to decide whether the father or mother took care of the baby and that it was directly discriminatory for the father to receive less than the mother would in the same situation. Capita defended their decision on various grounds, including that it was not appropriate to compare Mr Ali to a mother on maternity leave and that he should have been compared to a woman taking Shared Parental Leave.

Capita also argued that Mr Ali hadn’t been discriminated against because he had never actually taken Shared Parental Leave for the period in question. That said, Mr Ali had discussed with his managers the possibility of taking Shared Parental Leave and his concerns that he would not be paid during any such leave. He had also raised concerns through his union and had submitted a formal grievance (which the Tribunal found had been unnecessarily long and drawn out and which failed to address Mr Ali’s concerns).

The Tribunal was satisfied that by being deterred from taking a period of Shared Parental Leave, Mr Ali had been discriminated against. The Employment Tribunal also decided that, having raised concerns about discrimination, Mr Ali had been victimised by Capita in the way he was treated following a period of stress related absence from work.

What lessons can be learned by employers from this case?

We’d advise employers to carefully consider how their Maternity, Paternity and Shared Parental Leave policies and pay arrangements work in practice, particularly if enhanced pay is offered for some types of family leave.

It is thought that the low take up of the Shared Parental Leave scheme is because few employers offer enhanced pay – the statutory pay normally on offer is just £140.98 (see our rates and limits download for more useful information). Consider whether you want to be a trailblazer and offer pay at an enhanced rate – in practical terms, take up is likely to remain fairly low anyway and yet the goodwill and positive publicity may be worth far more.

Anything else to look out for?

The decision in this case goes against earlier cases and the UK government guidance and will not be binding on other Employment Tribunal decisions. We’ll be keeping an eye out for any appeals or other cases in the future.

Let’s have a chat about how this case could affect your employment practices – call us on 01904 520160.

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