THE CURRENT LAW
The law as it currently stands provides that a woman is entitled to take up to 52 weeks Maternity Leave and to receive up to 39 weeks Maternity Pay, set at a minimum level by the Government each year. Some employers choose to enhance this pay in accordance with internal policies.
Since 2015, fathers are only entitled to 2 weeks Paternity Leave, but can opt to share the Maternity Leave and Maternity Pay with a child’s mother under the Shared Parental Leave (“ShPL”) Scheme.
The question for employers, and specifically that raised by Mr. Ali in this case is this…should an employer who has an internal policy of paying enhanced Maternity Pay to female employees, pay this enhanced rate of pay to a father who takes ShPL, or should the father simply be paid the statutory minimum level of pay under the Shared Parental Pay (“ShPP”) scheme?
In this specific case, female employees employed by Capita Customer Management (“Capita”) who had transferred into the business via TUPE, were entitled to Maternity Pay comprising 14 weeks’ pay at the level of their basic salary, before moving to 25 weeks’ pay at the statutory minimum level (currently £140.98 per week). Transferring male employees were entitled to 2 weeks paid Paternity Leave.
Mr Ali, took 2 weeks’ Paternity Leave immediately following the birth of his daughter, but then took the decision to request further time off work to care for his daughter. Capita advised that he was entitled to take a period of ShPL, but informed him that he would be paid ShPP only – he would not be entitled to the 14 weeks’ pay at the level of his basic salary as his partner would have been if she had decided to continue Maternity Leave.
Mr. Ali objected to this, alleging that it was open to parents to choose which one of them should be the primary caregiver, and for an employer to elect to pay a mother more than a father in respect of the necessary leave taken for this purpose was direct sex discrimination.
The Tribunal upheld Mr. Ali’s argument. It confirmed that he could compare himself to how a hypothetical female colleague who had taken Maternity Leave would have been treated, and the denial of full pay to Mr. Ali was unfavourable treatment due to his sex.
However, employers should be aware that this is only a first instance Tribunal decision and is currently being appealed.
In another recent case based on similar circumstances, the Tribunal reached a different decision (Hextall v Chief Constable of Leicestershire Police), where it was held that Maternity Leave and Maternity Pay are “special treatment” afforded to women in connection with pregnancy and childbirth, which did not go any further than “reasonably necessary” on the basis that women suffer disadvantages in work due to pregnancy and maternity, which typically detrimentally affects a mother’s finances more than a fathers.
Capita and Hextall also conflict on whether a valid comparison can be made between a mother taking Maternity Leave and parents taking ShPL. Both men and women can take ShPL, whereas only a female can take Maternity Leave. Maternity leave is also different in that women can choose to start this before their child’s birth, whereas ShPL cannot start until 2 weeks’ after birth, and it is impossible to take ShPL without both parents agreeing to this, whereas Maternity Leave can be taken as of right.
The Hextall Tribunal concluded that the correct comparator for the father in question was a woman taking ShPL, and as the woman would receive ShPP on the same terms as the man, there was no less favourable treatment and accordingly no discrimination.
The question as to which case is the correct interpretation of the law will now be left to the Appeal Tribunals. Therefore, before employers rush to change their policies, they may wish to review the business reasons behind their current family policies, whilst keeping abreast of the final decisions in these cases.
If you would like more advice about any of the issues raised in this article, please contact a member of our team on 01604 871143.