Are fathers entitled to the same right to enhanced pay as female employees?

A father has won a sex discrimination claim after his employer told him that he would be paid full pay for only two weeks’ paternity leave, despite the entitlement of his female counterparts to enhanced maternity pay.

Facts

The Claimant, Mr Ali, was a former Telefonica employee who transferred to Capita and, under the TUPE Regulations Telefonica’s policies transferred with him.

Telefonica’s policies gave female employees the option of 14 weeks’ maternity leave at enhanced pay, followed by 25 weeks’ at statutory pay, provided that the employee had completed 26 weeks’ service. Male employees were entitled to two weeks paternity leave on full pay.

When Mr Ali’s wife gave birth, she was diagnosed with postnatal depression and received medical advice that returning to work would assist her recovery. Mr Ali took his paternity leave for his entitled two weeks followed by annual leave so that he could stay at home and look after the couple’s baby. Upon his return to work, Mr Ali was advised by the HR department that he was entitled to shared parental leave but that he would only receive statutory parental pay during any further leave he took.

Mr Ali brought a claim for direct sex discrimination, indirect sex discrimination, and victimisation, and argued that male employees should be entitled to the same right to leave on enhanced pay as female employees.

Judgment

When defending the sex discrimination complaint, Capita advanced three arguments:

1.  The comparison made by Mr Ali was not a valid comparison because he had not given birth. The law entitles only female employees the right to maternity leave and the ancillary right to maternity pay for this reason because of the special considerations that only women are pregnant and give birth.
2. Mr Ali, as a man, cannot take account of the special treatment afforded to a woman in connection with pregnancy/childbirth (a rule prescribed under the Equality Act 2010 in relation to claims of direct discrimination brought on the grounds of sex).
3. Mr Ali did not apply to take the shared parental leave and hence could not say that he was, in fact, treated less favourably than his hypothetical comparator.

In the judgment, Employment Judge Rogerson, stated that Mr Ali was not comparing himself to a woman who had given birth and accepted that for the two weeks immediately after the birth he cannot because that time is specific to with recovery after childbirth, which is unique to women. However, the judge agreed with Mr Ali that he could compare his treatment with a hypothetical comparator (a female Telefonica-transferred employee taking leave after the initial compulsory two-week leave period) even though he had not given birth.

The judge, therefore, found that Mr Ali did not suffer any less favourable treatment in the initial two week period because he also got full pay. However, in the subsequent 12-week period, he was denied the benefit of full pay, which would have been given to a hypothetical female transferred Telefonica employee, caring for her child. Men are being encouraged to play a greater role in caring for their babies, and the judgment noted that it was not clear to the judge why any exclusivity should apply beyond the two weeks after birth. The judge found that there should not be generalised assumptions that the mother is always best placed to undertake the role and should get full pay because of that assumed exclusivity.

In these particular circumstances, the judge found that the father was best placed to perform the role of caring for the child due to his wife’s postnatal depression.  The caring role that he wanted to perform was not exclusive to the mother. There was, therefore, no special treatment in connection with pregnancy and childbirth but rather caring for a new-born.

Regarding the third argument raised by Capita, the judge found that the fact that the Claimant did not apply for shared parental leave did not prevent liability for the discriminatory treatment. The HR department advising that he would only be entitled to statutory parental pay deterred Mr Ali from applying.

The Tribunal, therefore, upheld Mr Ali’s complaint of direct sex discrimination. It accepted Mr Ali’s argument that the policy took away the choice that he and his wife wanted to make as to who should stay at home and care for their baby by assuming that a man caring for a baby should not be entitled to the same pay as a woman doing the same.

Case comment

This decision is thought to be only the third claim brought relating to enhancement of shared parental pay. One claim succeeded and the other failed, with the Tribunal, in particular, highlighting that maternity leave and maternity pay are, by definition, special treatments afforded to a woman in connection with pregnancy or childbirth. We understand that both cases are under appeal.

In the meantime, our view is that as the number of men taking on childcare responsibilities is likely to continue to increase, employers should check their maternity and parental leave policies carefully to ensure they do not unlawfully discriminate against men, and, where appropriate, implement change.

For further advice or information on shared parental leave, sex discrimination or Employment Tribunal claims, please get in touch with your usual contact or speak to Anna Dabek.

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