Ali v Capita Customer Management: Father wins discrimination case against employer for failing to give him full pay during shared parental leave

A father has successfully sued his employer who failed to pay him in full during shared parental leave, as it would have done for mothers during maternity leave. This case is the first of its kind to have been won by a man in England since the new Shared Parental Leave laws came into force in April 2015.

In this case, Mr Ali worked as a call centre agent for Capita Customer Management. His wife had post natal depression and as part of her recovery had been advised to return to work. As a result, Mr Ali wanted to take shared parental leave in order to care for his daughter. Capita’s policy was to pay women on maternity leave their full salary for 14 weeks. However, for shared parental leave, Capita only offered a statutory minimum rate of pay. Mr Ali argued that, refusing to pay him the same as a woman taking maternity leave was direct sex discrimination and the Employment Tribunal agreed.

The Employment Tribunal accepted that men are being encouraged to take a greater role in child care and Mr Ali was deterred from taking shared parental leave due to the pay discrepancy. He was therefore treated less favourably than a woman in a comparable situation. The judge in this instance commented that choosing who is best placed to care for a child is the parents’ decision and should be free of assumptions that the mother will always undertake the role as primary carer.

Employers should bear in mind that this decision is a first instance decision in the Employment Tribunal and is not binding in other cases. The case therefore does not require employers in all situations to enhance shared parental leave if they enhance maternity pay, nor is this specifically by legislation. However, it is likely that cases with similar facts will follow this decision.

We understand that, Capita are going to appeal the decision but if it is upheld it will have a profound effect on employers and how they approach maternity and shared parental leave.

If you’d like to discuss the issues in this blog further, please feel free to contact our Employment team on 0161 926 9969 or employment@mlplaw.co.uk. And don’t forget to follow us on Twitter @HRGuruUK.