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Employment Law Case Update: Ali v Capita Customer Management Ltd

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In the case of Ali v Capita Customer Management Ltd, Mr Ali was a former employee of Telefonica. He transferred to Capita when Telefonica transferred all their employees, and Telefonica’s policies also transferred with them.

Telefonica’s maternity policy stated that female employees taking maternity leave are entitled to enhanced maternity pay. The policy gave female employees with at least 26 weeks service the option of 14 weeks of enhanced maternity pay followed by 25 weeks at the rate of statutory maternity pay. The policy on paternity leave entitled new fathers to two weeks on full pay during paternity leave.

Mr Ali’s wife gave birth and then was diagnosed with post-natal depression. She was given the medical advice that returning to work would help her recovery.

Mr Ali took his fully paid paternity leave for the first two weeks following the birth of his child and then a number of weeks of annual leave. When he returned to work the Human Resources department informed him he was entitled to statutory Shared Parental Leave only.

Mr Ali claimed direct sex discrimination at the Employment Tribunal. Mr Ali was arguing that whilst two weeks maternity leave is compulsory for new mothers, for the following 12 weeks, male employees should be given the same right to leave on enhanced pay as female employees.

Mr Ali argued that the policy assumed that a man caring for his baby is not entitled to the same pay as a woman performing that role, therefore taking away the choice that he and his wife wanted to make for their baby. Mr Ali did not believe this was a valid assumption to make in 2016.

The Employment Tribunal upheld his claim of sex discrimination. It accepted that men are encouraged to play a greater role in caring for their babies. It agreed that the role of primary carer is a choice for the parents but this should be free of generalised assumptions that the mother is always best placed to undertake the primary role and should get full pay.

This decision is one of only three cases on the enhancement of shared parental pay and it is reported that Capita will be appealing the decision.

Employers should note the decision in this case, however there is no binding case law or legislation that specially requires employers to enhance shared parental pay if they enhance maternity pay.

The advice to employers as a result of this would be to wait for further guidance from the Employment Appeal Tribunal before amending any policies on enhanced shared parental leave or maternity policies. If the decision in this case is upheld then those policies may need reconsidering.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.