Employers advised to review policies after SPL discrimination case

An HR expert has warned employers to clarify the business reasons behind their family policies following a tribunal ruling that a dad who was denied enhanced shared parental pay was discriminated against.

The case involved a father working for Capita Customer Management who claimed he had been discriminated against because he was told he could only take Shared Parental Leave at the statutory rate whereas women in his position would get 14 weeks of maternity pay on full pay.

The employee was TUPE’d over to Capita Customer Management from Telefonica in 2013. He took paternity leave when his daughter was born. His wife was diagnosed with post-natal depression soon after and eventually decided that she would return to work early as a result.

The employee asked if he could take additional parental leave and was told to take SPL at the statutory rate.

He filed the case after finding that women in his position were entitled to 14 weeks maternity leave on full pay. He argued that by denying men the additional leave on full pay the company was effectively denying his wife and him choice over who cared for their baby.

The judge ruled that the “caring role he wanted to perform was not a role exclusive to the mother”. The judgment read: “In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances, but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”

Kate Palmer, Head of Advisory at HR< Employment Law and Health & Safety consultancy Peninsula, said: “This ruling will be concerning for many employers who provide enhanced maternity pay to female employees under family friendly policies. Previous cases have supported the notion that employers can provide better pay for female workers than male workers in recognition of the special position they are in due to giving birth and to support mothers to take time off from work after childbirth and during periods of breastfeeding.

“The decision is based on the particular facts of the case and first instance tribunal judgments are not binding. This means another tribunal hearing a similar case can reach a different conclusion on whether such a pay policy is discriminatory or not. For now, employers may wish to clarify the business reasons behind their current family policies, whilst keeping their eyes open for whether this case continues up the appeals ladder.”

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