Mr Ali joined Capita in 2013, via a transfer from Telefonica under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE"). Under the terms of its family friendly policies, female employees who had transferred from Telefonica were entitled to 14 weeks’ maternity leave at full pay following the birth of their child; however, male employees who had transferred, such as Mr Ali, were entitled to two weeks’ paid leave following the birth of their child.
Mr Ali's daughter was born prematurely in April 2016 following which he took two weeks' paid paternity leave and a week's annual leave. Mr Ali then wished to take more time off to take care of his daughter after his wife suffered from post-natal depression and was advised to return to work by medical professionals in order to assist her recovery.
Mr Ali was informed that he would be entitled to shared parental leave which, in accordance with the Capita policy (and many employers' policies) would be paid at the statutory rate. Mr Ali argued that he was being discriminated against on the basis that a female employee would have received 14 weeks' full pay. Mr Ali accepted that he had been paid paternity pay at full pay during the first two weeks immediately following the birth of his daughter and so his claim focused on the subsequent 12 weeks when a female employee would have been entitled to maternity leave at full pay.
Mr Ali's claim of direct sex discrimination was successful in the Employment Tribunal. The Tribunal concluded that there was no reason why any exclusivity should apply beyond the initial two weeks after birth particularly as men are being encouraged to play a greater role in caring for babies.
The EAT has found that the Employment Tribunal erred in failing to consider the purpose of maternity leave with pay. The purpose of maternity leave and pay is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The EAT found that "maternity pay is given not for performing a role but to enable the mother to take leave for her own health and wellbeing". In a 60 page judgment the EAT went into detail about the nature of maternity leave and how it can begin before a child is born (when there is no child to care for). The EAT recognised that a mother will care for her baby but that is a consequence not the purpose of maternity leave and pay.
Further key points to note include:
- It was not possible to separate level of pay from the type of leave taken.
- Shared parental leave is given on the same terms for men and women.
- Paying enhanced maternity pay falls within the special treatment afforded to women in connection with pregnancy or childbirth under s13(6)(b) of the Equality Act 2010.
Employers will be relieved that we now have an appellate decision confirming that it is not direct sex discrimination to pay enhanced maternity pay and only statutory pay for shared parental leave pay. This decision is in line with the Government's technical guidance which confirms that occupational maternity schemes need not be extended to shared parental leave.
Employers should be aware that the period of maternity leave and pay in question in this case was 14 weeks, which is exactly in line with the requirements of the Pregnant Workers Directive. When considering enhanced maternity pay it may be that enhanced pay for a period of leave extending beyond 14 weeks could re-open the possibility of a comparison being drawn between a woman on maternity leave with a father on shared parental leave, without the special treatment protection given under the Pregnant Workers Directive.
We will keep you updated.