An employment tribunal has ruled that a male employee was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay.
In the case Mr M Ali v Capita Customer Management, Madasar Ali joined Capita Customer Management via a transfer of undertaking (protection of employment) regulation (TUPE) transfer from Telefonica in 2013. As a male employee, Ali was entitled to two weeks of paid leave following the birth of his child. A female employee who had transferred from Telefonica would have been entitled to up to 14 weeks of leave at full pay following the birth of a child.
Ali took two weeks of paid paternity leave following the premature birth of his daughter in February 2016, followed by a week’s paid annual leave. Ali wished to take further leave to care for his daughter after his wife was diagnosed with post-natal depression and received medical advice to return to work to aid her recovery.
Ali was informed that he would only be eligible for shared parental leave under the Capita policy, entitling him to statutory pay. Ali claimed that this would leave him at a financial disadvantage and he argued that he was therefore deterred from taking further paternity leave. He contended that he should receive the same paid leave entitlement as a female colleague who had transferred from Telefonica and the fact that he was not eligible for the same length of paid leave amounted to direct discrimination on the grounds of sex.
The complaint focused on the 12-weeks following the two-week period immediately after the birth of the child. Ali accepted that in the two weeks after the birth, he received his paternity leave at full pay, while his wife received compulsory maternity leave to help her physically recover.
Employment judge Rogerson ruled in favour of the direct sex discrimination claim. With regards to victimisation claims that Ali also brought against his managers at Capita Customer Management for their treatment of him during this period, Rogerson ruled in favour of four of the five alleged claims.
In the judgement documents, published on 2 June 2017, Rogerson said: “It was not clear why any exclusivity should apply beyond the two weeks after the birth. 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.”
A spokesperson at Capita Customer Management said: “We are aware of the Tribunal-level decision in relation to Mr Madasar and as an organisation that takes equal opportunities very seriously, we are disappointed with the outcome in this case on that part of the claim where we were unsuccessful. We have lodged an appeal against that part of the claim where we were unsuccessful with the Employment Appeal Tribunal.”
Kate Palmer, head of advisory at law firm Peninsular, 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, while keeping their eyes open for whether this case continues up the appeals ladder.”