An employment tribunal has held that a male employee suffered direct sex discrimination when his employer failed to pay him enhanced shared parental pay.
The entitlement for female employees, in this case, was to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ Statutory Maternity Pay (SMP). Male employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”.
The employee, in this case, took two weeks’ paid leave immediately upon the birth of his daughter. He wanted to take additional leave and asked his employer about his rights. He was informed that he was eligible for Shared Parental Leave (SPL), but that they only paid statutory Shared Parental Pay (ShPP). The employee asserted that he should receive the same entitlements as a female employee taking maternity leave. When his grievance to this effect was rejected, he issued proceedings in the employment tribunal, alleging sex discrimination.
Male employee brings sex discrimination claim
He argued that given that it was open to parents to choose which one of them took leave to care for their child, it followed that it was direct sex discrimination to then choose to pay a woman (the mother) more than a man (the father) in respect of that leave. He argued that he had been deterred from taking SPL because he had been told he would only be paid ShPP.
The tribunal upheld his direct sex discrimination claim. The tribunal said that he could compare himself with a hypothetical female colleague (one who took leave to care for her child after the two week compulsory maternity leave period). It also said that the denial of full pay amounted to less favourable treatment and the reason for this was his sex. The tribunal said that the enhanced maternity pay afforded to employees was not special treatment in connection with pregnancy and child-birth, it was about special treatment for caring for a newborn baby.
Case reference: Ali v Capita Customer Management Limited