No, said the ET in Ali v Capita Customer Management Ltd.

Mr Ali worked for Capita, having transferred to Capita from Telefonica under TUPE in 2013. Female employees at Capita who had transferred from Telefonica were entitled to 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay when taking maternity leave. Male employees in the same position were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which was either paid or unpaid. When Mr Ali’s wife gave birth, she was diagnosed with post-natal depression. Medical professionals advised that returning to work would help her recover. Mr Ali, therefore, wanted to take leave to look after his daughter and asked Capita about his rights. He was informed by Capita that in addition to two weeks’ paid paternity leave, he would be permitted to take shared parental leave, but that this would be paid at the statutory shared parental pay rate. Consequently, he claimed direct sex discrimination in the ET.

Mr Ali accepted that two weeks’ maternity leave is compulsory for new mothers. He argued that, for the next 12 weeks, male employees who had transferred to Capita from Telefonica and who took leave to care for a newborn baby should be entitled to the same enhanced pay as female employees in the same circumstances. The ET upheld Mr Ali’s complaint of direct sex discrimination, pointing out that men were now being encouraged to play a greater role in caring for their babies. The ET commented that, while the role of primary carer would be a matter of choice for parents, the choice ‘should be free of generalised assumptions that the mother is always best placed to undertake that role’ and should be the only carer entitled to full pay.

We have, to date, only had the benefit of ET decisions on this issue. There is currently, therefore, no binding case law requiring employers to enhance shared parental pay if they enhance maternity pay. It has been reported that Capita will appeal the decision, which will hopefully clarify matters. It would, however, be prudent for employers to review their policies in the meantime, and to be prepared to change them depending on the outcome of the EAT decision. Employers should also note that it is unlikely to be reasonable to assume that a primary carer will always be female.

For more information, please contact Nia Cooper.

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