James Wilders: Father succeeds in sex discrimination claim

James Wilders Bond Dickinson

The Equality Act protects men as well as women from being discriminated against on grounds of sex. In the case of Madasar Ali v Capita Customer Management, an Employment Tribunal has held that an employer’s failure to pay enhanced shared parental pay at the same rate as enhanced maternity pay amounted to direct sex discrimination.

The claimant, Ali transferred to Capita under the Transfer of Undertakings (Protection of Employment (Tupe)) Regulations from Telefonica. Female Telefonica transferring employees were entitled to maternity pay at the rate of 14 weeks’ basic pay followed by 25 weeks’ statutory maternity pay. Ali and his male colleagues were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which, under the relevant policy, ‘may or may not be paid’.

Ali wanted to take time off to care for his daughter so that his wife could return to work. He asked to receive the same pay as the maternity entitlements that Capita paid to the female transferred Telefonica staff. Following a protracted but unsuccessful grievance, Ali claimed in tribunal that the difference between the paternity pay and maternity pay under the policy was discriminatory.

The tribunal held that Ali could be compared with a hypothetical female colleague who took leave to care for her child, and that denying him full pay amounted to less favourable treatment for which the reason was Ali’s sex. This was despite a provision in the Equality Act under which special treatment afforded to women “in connection with pregnancy or childbirth” is to be disregarded in sex discrimination claims. The tribunal found that the childcaring role that Mr Ali wanted to perform was not special treatment in connection with pregnancy or childbirth, but was about special treatment for caring for a newborn baby.

The decision in this case is not binding because it was given only by a first instance tribunal. It contradicts the decision in another non-binding tribunal case called Hextall v Chief Constable of Leicestershire, which held that it was not discriminatory to offer enhanced maternity pay and only statutory shared parental pay.

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Both Ali’s claim and the Hextall case are being appealed to the Employment Appeal Tribunal. Clarification of this important area of law will be welcomed by employers.

James Wilders is a partner in the employment team at law firm Bond Dickinson