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Shared parental leave and pay – treating fathers equally

Meredith Hurst Tuesday, January 30, 2018

2018 looks like it will be an interesting year for employment law. One of the cases coming up is the appeal in Ali v Capita Customer Management Ltd looking at questions of direct discrimination in relation to shared parental leave and pay.

The Shared Parental Leave Regulations 2014 were introduced with the aim of giving families more flexibility in the first year after their children are born. Although maternity leave and ordinary paternity leave are still in place, parents can choose to convert this into Shared Parental Leave. This is effectively a pool of time off that parents can share between them. Shared Parental Pay was also introduced so that either mother or father taking the leave would be paid.

Of course, as with all these initiatives that sound great on paper, the take up will depend very much on individual circumstances, and workplace policies - a situation clearly highlighted in the case of Ali v Capita Customer Management Ltd

The Facts in Ali v Capita Customer Management Ltd

Mr Ali took his ordinary paternity leave immediately following the birth of his daughter, and then asked for Shared Parental Leave so that he could take over caring for his baby. His wife had been diagnosed with post-natal depression and the doctors in charge of her care had suggested that going back to work would help her recover. Women in his organisation were entitled to 14 weeks' enhanced maternity pay - and received ShPP at this enhanced rate. However, Mr Ali was advised that he would be paid ShPP at the statutory rate. As a result of this, he did not take SPL.

Getting the comparator right

The Employment Tribunal found that Mr Ali's treatment was directly discriminatory.  The employer tried to argue that there was no comparator because Mr Ali had not given birth and so could not compare himself with a woman employee entitled to enhanced maternity leave under the relevant policy. Mr Ali countered that he was not comparing himself with a woman who had given birth. He was not questioning the period of compulsory maternity leave that all women must take. He had also received full pay for the 2 weeks immediately following his daughter's birth - albeit as paternity pay.

Mr Ali's argument related to the following 12 week period, and what a woman caring for a child would receive as compared to a man. Under the relevant policy, Mr Ali was entitled to statutory shared parental pay while a woman would have received enhanced maternity pay.

Caring for a child is not exclusive to women

As mentioned, all women must take compulsory maternity leave immediately after giving birth - this is 2 weeks in most cases, although can be 4 weeks if the woman works in a factory environment. This is a health and safety measure specifically related to being pregnant and giving birth. The employer argued that the whole of the 14 week period afforded 'special treatment' to a mother who had given birth - not just the 2 weeks compulsory leave.

The Tribunal did not agree. It decided that there was no reason why a woman should have some kind of 'exclusive' call on this special treatment once the 2 weeks' compulsory leave was up. Beyond the 2-week period, maternity leave was about caring for the child - not about the mother's pregnancy or childbirth. Shared Parental Leave and Pay is supposed to allow whichever parent is best placed to do so to care for the child. In this case, given his wife's diagnosis of post-natal depression, and her need to go back to work, that was Mr Ali.

The purpose behind the Regulations - and grounds for appeal?

In reaching its decision, the Tribunal referred to the purpose behind the Shared Parental Leave Regulations 2014 - an unusual approach given that it was not considering the application of those regulations directly, but the provisions of the Equality Act 2010. It's also not clear how the Tribunal came up with the correct comparator. In the case of  Hextall v Chief Constable of Leicestershire Police ET/2601223/2015 the Tribunal rejected an argument by the male claimant that he could compare himself with a female police officer on maternity leave. The Tribunal in Ali didn't refer to the Hextall  case - a case in which the Tribunal took a more traditional approach. It's also interesting to note that the Tribunal inHextallspecifically rejected the invitation to look at the purpose behind the Regulations when interpreting the Equality Act 2010 - at paragraph 18 of the judgment, the Tribunal says

"In so far as the claimant is inviting us to use the Regulations or the policy behind them as an aid to interpreting the EqA, we decline that invitation. We think we would be making an error of law were we to accede to it."

We understand that there is to be an appeal in the Ali case which should bring more clarity to the position - particularly given the contradictory decisions in Ali  and Hextall. One thing is for certain - the facts in both cases illustrate that for Shared Paternity Leave to be feasible for many fathers, consideration should be given to increasing the statutory rates of pay which currently deter many. An article published last April reports research by Working Families that a third of those who said they would not take SPP would not do so for financial reasons.

If you have a question about paternity pay or leave, or shared parental leave, get in touch! We are expert employment lawyers and will be able to help you whether you are an organisation trying to get it right for your employees, or an employee struggling to access your rights. 

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