Dad loses appeal over Shared Parental Pay

The Employment Appeal Tribunal has set aside a judgment in a case brought by a dad alleging direct sex discrimination with regard to Shared Parental Pay.

The employment tribunal had earlier found against his employer Capita which has a 14-week enhanced maternity scheme while Shared Parental Pay is paid at the statutory rate.

Capita had argued that there was no ‘real comparator’ as Mr Ali had not had a baby and therefore could not compare himself with a female employee who had given birth and that she was therefore entitled to the enhanced pay.

Mr Ali said he was not referring to the two-week compulsory leave for mums but to the following 12-week period and said that, whatever a woman was receiving by way of pay to care for a child, a man should receive the same. He argued that caring for a child was not exclusive to a woman with the exception of the initial two-week compulsory maternity leave period.

Capita said the whole of the 14-week period afforded ‘special treatment’ to a mother who had given birth – not just the two weeks compulsory leave.

The Appeal judge decided the Tribunal had failed to consider the different purposes of Shared Parental Leave (SPL) and Maternity Leave. The judgment confirms that the purpose of SPL (to care for a child) is different from the purpose of maternity leave (which is to support the health and wellbeing of a mother before, during and after childbirth) and the entitlement of pay is inseparable from the type of leave taken.

Working Families Chief Executive Sarah Jackson said: “Today’s decision is an important safeguard for the special employment protection needed for pregnant women and new mothers.   We intervened in this case because the particular workplace disadvantage women face having experienced pregnancy and childbirth must continue to be recognised in law.   Only women can experience childbirth, and maternity leave is to protect women’s health and wellbeing – it cannot simply be equated with “childcare”.

“We have long called for greater rights and pay for working fathers, including properly paid, standalone period of extended paternity leave for fathers; but these should complement, not undermine, the rights of working mothers. This is a not a zero-sum game.

“We encourage all our employer members to match Shared Parental Pay to enhanced maternity pay, because well paid leave is vital if we are to see more fathers take up their rights, and ultimately to improve equality at work and at home.”

Beverley Sunderland, Managing Director at Crossland Employment Solicitors, commented: “For working mums, today’s news will get a mixed reception. In one way it will be welcomed by women in recognising that maternity leave is not just about caring for their child but is there for their health and wellbeing and to allow them to bond with their new born.

“But both men and women may see this as a blow in encouraging men to have more involvement with the care for their child by taking shared parental leave. As recent gender pay gap results would suggest, men are often the highest paid and so for them to take time out on shared parental leave being paid shared parental leave pay only is going to put a bigger strain on family finances, no matter how much they would like to. But as we move towards skill shortages in many areas of the country, some enlightened employers may take advantage of the shifting priorities of millennials and start to offer enhanced shared parental leave to all staff in order to retain top talent.”

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