The low take-up of shared parental leave is due in large part to fathers not being able to afford to take it at statutory rates. The facts of Ali v Capita Customer Management are unfortunately entirely consistent with these findings.
Mr Ali sought to take shared parental leave to care for his newborn daughter after his wife was diagnosed with post-natal depression. However, he was deterred from taking it because he was told he would only receive statutory pay during this period. Female employees on maternity leave received 14 weeks of enhanced pay at his organisation.
The tribunal upheld Mr Ali’s direct sex discrimination claim. The tribunal held that, after the first two weeks of compulsory maternity leave, a female employee who took maternity leave to care for her baby was an appropriate comparator. It did not matter Mr Ali had not given birth.
The outcome of the case accords with the purpose of the Shared Parental Leave Regulations 2015; to allow parents to share the care of young babies and alleviate the burden on working mothers. Equality for women in the workplace will be easier to achieve with parental leave that can be genuinely shared between mothers and fathers, according to the circumstances and choices of the family. It is encouraging that the tribunal explicitly reminded itself that either parent could perform the role of caring for their baby in the first year.
On the other hand, the tribunal took a novel approach in accepting a woman on maternity leave as the correct comparator for Mr Ali’s direct sex discrimination claim. In Hextall v The Chief Constable of Leicester Police, a different tribunal originally heard in August 2016 that took a more traditional approach, came to the opposite conclusion and was scathing of attempts to disregard the fact that women on maternity leave had given birth.
Ali and Hextell will be heard by the Employment Appeal Tribunal (EAT) in December 2017 so watch this space for appellant authority on whether employers who offer enhanced maternity pay must also offer enhanced shared parental pay.
Sian McKinley is a barrister at Cloisters Chambers