An employment tribunal judge has ruled that offering a man two weeks’ paid leave following the birth of his child amounted to discrimination, given that comparable female employees were entitled to 14 weeks.
In Ali v Capita Customer Management Ltd, the claimant took two weeks’ paid leave following the birth of his daughter in February 2016 for which he was paid.
He told his manager when he was on paternity leave that his wife had been diagnosed with post-natal depression and had been advised to return to work to assist her recovery. He returned to work in March (after taking a period of annual leave), but wanted additional time to care for his child. He was told that he was eligible for shared parental leave under the Capita policy but would only be entitled to statutory pay.
Mr Ali, who had transferred over from Telefonica to Capita 2013 under the Transfer of Undertakings Regulations, argued that he was entitled to the same benefits which his female Telefonica-transferred colleagues enjoyed. Namely, full pay for 14 weeks, apart from the initial two-week period to allow for a physical recovery from the birth.
After dismissing his grievance, Mr Ali brought claims of direct and indirect sex discrimination as well as victimisation. The tribunal agreed that he could compare his treatment with a hypothetical comparator (a female Telefonica-transferred employee) even though he had not given birth. It concluded that as he was denied the more favourable treatment that a female colleague would have enjoyed, he had been treated less favourably because of his sex.
In terms of the pay to which he was entitled, the tribunal judge made clear that “in 2016” it should be possible for men to make a choice about whether to care for their child “free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity”.
It has been reported that Capita will appeal the decision to the EAT. In that event, the EAT decision will be summarised in a future LELR.
Iain Birrell of Thompsons Solicitors commented “this decision could be the first step on a journey of genuine social change for paid leave following the birth of a child. It is important to keep it in perspective though as (a) it is just an Employment Tribunal decision and therefore is not binding on anyone, and (b) the EAT may yet take a different view. However, in the meantime the winning argument can be used in the workplace and a receptive employer might agree. It is also possible to lodge a tribunal claim on that basis and have it stayed pending the final appeal decision, although you would lose your £230 issue fee if it subsequently had to be withdrawn. Interesting times.”
To read the tribunal judgment in full, go to: https://assets.publishing.service.gov.uk/media/592fec3fe5274a5e51000124/Mr_M_Ali_v_Capita_Customer_Management_Ltd_1800990.2016_-_Final.pdf