The EAT has confirmed in Capita Customer Management Limited v Ali that a father who wished to take shared parental leave was not directly discriminated against in not being entitled to the higher maternity pay rate which the employer paid to employees taking maternity leave.

Capita’s maternity, paternity and shared parental leave policies applying to employees who had transferred from Telefonica entitled female employees to 14 weeks basic pay followed by 25 weeks of statutory maternity pay when taking maternity leave. When Mr Ali’s daughter was born in February 2016 he was entitled to and took 2 weeks’ paternity leave at full pay. When he returned to work he enquired about taking further time off to look after his daughter as his wife was suffering from postnatal depression and had been advised to return to work. He was told that he could take shared parental leave but would only be entitled to the statutory rate of pay, at the time £139.58 per week. Mr Ali brought a claim of direct sex discrimination. The Employment Tribunal upheld the claim, concluding that Mr Ali could compare himself to a female hypothetical comparator on maternity leave as both would be taking leave to look after their baby. The ET concluded Mr Ali had been directly discriminated against because he would not receive full pay during the 12 week period for which he wished to take leave.

On appeal the EAT upheld Capita’s appeal, finding that Mr Ali was not directly discriminated against on grounds of sex. The EAT considered that Mr Ali could not compare himself with a woman on maternity leave. Maternity leave has a different purpose from shared parental leave; maternity leave is for the health and wellbeing of the mother, whereas the purpose of shared parental leave is to care for the child. Mr Ali could compare himself with a woman taking shared parental leave, but that is given on the same terms for both men and women and is therefore not discriminatory. The rate of maternity pay is inextricably linked to the purpose and circumstances of maternity leave and it is not discriminatory for an employer to pay enhanced pay for maternity leave but not shared parental leave.

The EAT is also shortly due to give its judgment in the linked case of Hextall v Chief Constable of Leicestershire Police. Mr Hextall brought a claim of direct sex discrimination in similar circumstances which was unsuccessful in the ET.