Not discriminatory to refuse enhanced SPL pay says EAT

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​It is not sex discrimination to refuse a new father enhanced paternity pay, the employment appeal tribunal (EAT) has ruled

In Capita Customer Management v Ali, the EAT overturned a decision made last year that it was direct sex discrimination to allow new father Ali only two weeks’ leave on full pay while taking advantage of shared parental leave (SPL), when female staff were allowed to take 14 weeks’ maternity leave on full pay.

The judge found that the employment tribunal last year had failed to consider the purpose of paid maternity leave, after Working Families intervened by making written submissions to the EAT.

The work/life balance charity’s appeal stated that only after a period of 26 weeks might the purpose of maternity leave differ from the biological recovery following childbirth and a bonding period between mother and child. Only then would it be possible to draw a valid comparison between a father taking SPL and a mother on maternity leave, the charity stated.

On the facts of the case, the enhanced maternity pay was for the 12 weeks following the two weeks of compulsory maternity leave, the charity highlighted.

In this specific case Ali’s wife had been advised to return to work to help with her post-natal depression.

Working Families' chief executive Sarah Jackson said: “We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law. Only women can experience childbirth, and maternity leave is to protect women’s health and wellbeing – it cannot simply be equated with ‘childcare’.”

Jackson added the importance, however, of affording men greater childcare rights. “We have long called for greater rights and pay for working fathers – including a properly-paid, standalone period of extended paternity leave for fathers – but these should complement, not undermine, the rights of working mothers,” she said. “This is a not a zero-sum game.

“We encourage all our employer members to match Shared Parental Pay to enhanced maternity pay because well-paid leave is vital if we are to see more fathers take up their rights, and ultimately to improve equality at work and at home.”

Luke Bowery, a partner in the employment team at Burges Salmon, said that although the EAT’s decision wasn’t surprising, legislative change could still be in the pipeline.

“The recent decision in Capita v Ali is not surprising from a legal perspective and will be a relief to a large number of employers who enhance maternity pay but do not mirror the enhancement for their shared parental pay scheme,” he said.

“However, with the government’s current focus on raising awareness of shared parental leave, particularly among fathers, coupled with the gender pay gap fallout, it will be interesting to see if the legislative framework is tweaked to make shared parental pay more generous at some point.”

This appeal is linked to that of Mr A Hextall v The Chief Constable of Leicestershire Police, which held at employment tribunal that it was not discriminatory to give a period of full pay to mothers on maternity leave and only statutory shared parental pay to partners. Here the appeal decision has yet to be made.

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