Employment Law Case Update: Capita Customer Management Limited v Ali

Mr Ali was an employee of Telefonica until Telefonica transferred their employees and policies to Capita, and he became an employee of Capita.

Female employees who had transferred from Telefonica were entitled to enhanced maternity pay. The maternity policy stated that female employees who had been employed for at least 26 weeks were entitled to 14 weeks’ enhanced maternity pay on full salary, followed by 25 weeks’ statutory maternity pay.

In contrast, male employees taking paternity leave were entitled to take two weeks’ ordinary paternity leave on full pay, followed by up to 26 weeks’ additional paternity leave during which they “may or may not be paid”.

Mr Ali’s wife gave birth and Mr Ali took the first two weeks’ ordinary paternity leave. His wife was then diagnosed with post-natal depression, the suggested treatment of which was to return to work. To look after his daughter, Mr Ali planned to take further leave and so approached Capita to ask about his rights. They told him he was eligible for shared parental leave, but that they would only pay statutory shared parental pay.

Mr Ali asserted that, beyond the first two weeks after birth, he should receive the same entitlement as the female employees. Capita rejected this grievance.

Mr Ali took his case to the Employment Tribunal (ET), among other things, argued that the policy assumed that a man caring for his baby is not entitled to the same pay as a woman caring for her baby. The ET upheld his claim of direct sex discrimination, stating that beyond the first two weeks (when maternity pay is primarily used to help mothers recover from childbirth), pay is largely designed to facilitate the care for the baby. Given men are encouraged to care for their babies, parents should be able to decide who will take on the role of primary carer and both parties should be offered full pay.

Capita appealed the case to the Employment Appeal Tribunal (EAT). The EAT agreed with Capita, upholding the appeal, deciding that there was no direct sex discrimination. They disagreed with the ET’s findings - the purpose of maternity pay is for the health and wellbeing of the mother, whereas the purpose of shared parental pay is to care for the child.

Given the purpose of his leave was to care for the baby, Mr Ali could not therefore compare himself to a woman on maternity leave. The correct comparison would be to a woman on shared parental pay, who would be paid on the same terms as Mr Ali.

It is useful to have authority from the EAT on this issue. However, it is also worth reviewing the recent judgment of the case of Hextall v Chief Constable of Leicestershire Police, where the ET held that the police force’s policy of providing full pay to mothers on maternity leave but only statutory shared parental pay to fathers on paternity leave was not discriminatory. This case was appealed and heard in the EAT in January 2018, and the EAT has this week found that there was potential there for indirect discrimination – however, due to an absence of facts in the particular case, they referred it back to the ET for a new hearing.

This article is from our weekly Employment Law Newsletter published on 03/05/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

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.