Shared parental pay and sex discrimination – one to watch in 2019

It seems we’re no further forward in clarity on the legal position of paying statutory rates to a man taking shared parental leave, compared to paying enhanced maternity pay to a woman taking maternity leave.

This blog is a follow-up to an earlier post: Shared parental pay and sex discrimination

In 2018, Capita Customer Management appealed the earlier tribunal decision of direct sex discrimination in the case of Ali v Capita Customer Management Ltd ET/1800990/2016.

By way of summary of the 2016 facts and findings, Mr Ali was a new father who could take leave of 2 weeks at full pay following the birth of his child. After which, there was an option of shared parental leave on statutory pay. Whereas women could take 14 weeks at enhanced pay when on maternity leave.

The employment tribunal (ET) found that Ali was treated less favourably because of his sex in the 12 weeks following his 2 weeks at full pay.

In the appeal of Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT, it was held that there was no direct sex discrimination. The Employment Appeal Tribunal (EAT) mentioned that the rates of statutory shared parental pay would be the same for a man and a woman under the scheme. For example, in a same sex couple, a woman taking shared parental leave would receive the same pay as Mr Ali.

The EAT mentioned that a woman on shared parental leave was the correct comparator as opposed the ET, in 2016 comparing shared parental leave Vs maternity leave.

Mr Ali is expected to appeal the decision this year, but this case isn’t the only one to watch in 2019. Hextall v Chief Constable of Leicestershire Police also relates to shared parental pay and sex discrimination and is seeing similar tribunal activity. At the moment, it looks as though the current view could change again…

Blog image: men holding the babies
The story behind it – my Dad and his cousin as children, held by their Dads.

I thought this would be an apt photo for this blog as there wouldn’t even have been such a thing as paternity pay in the 1950s. In the UK, paid paternity leave came into effect in 2003, in case you were wondering!

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