Capita v Ali Update

Last year the Employment Tribunal (ET) found that Mr Ali was entitled to enhanced pay during time off for Shared Parental Leave (SPL). They held, as mothers were entitled to enhanced maternity pay, by not affording this to Mr Ali he was discriminated against based on his sex.

As expected, Capita appealed against the ETs ruling, with their appeal being heard earlier this month in the Employment Appeal Tribunal (EAT). The EAT have upheld the appeal ruling in favour of Capita.

Why Was The Earlier Ruling Overturned?

It was found that the ET had erred in their finding that the purpose of Maternity Leave and the subsequent pay was to provide care for the child, as legislation draws a clear distinction between the rights given to women during and after childbirth, and the rights afforded to parents of either sex to take leave to care for their child.

In focus the main difference being that the Pregnant Workers Directive focuses on the health and wellbeing of the mother and affords her a minimum of 14 weeks paid leave at a statutory rate. Although in England this is increased to 39 weeks. Whereas, the Parental Leave Directive focuses on the care of the child and makes no provision for pay.

Consequently it was held that the comparator, which is needed to establish a discrimination claim, was not a woman on Maternity Leave. But was instead a woman on SPL who would be afforded the same rights a Mr Ali. As such the EAT found that Capita did not discrimination against Mr Ali by reason of sex.

What Should You Do?

A parent on SPL cannot be compared to a mother on Maternity Leave during the initial 26 weeks’ Maternity Leave, even where she receives enhanced pay. However, the EAT have suggested that after the 26 week period the purpose of Maternity Leave changes from the biological recovery from childbirth and special bonding between the mother and child, to caring for the child. At which point it might be possible for a father on SPL to be able to compare themselves to a mother on Maternity Leave.

In the meantime however, it appears that employers can continue to pay mothers enhanced Maternity Pay without having to pay enhanced SPL, during the initial 26 weeks’ Maternity Leave. But, should you offer mothers enhanced SPL and not fathers this could lead to a sex discrimination claim, therefore you should ensure that when paying SPL you remain consistent throughout.

This blog was written by Chris Boyle, Partner at Napthens. However, if you would like to discuss this blog further, please contact Judith Dugdale on 01772 821 021.