News Updates

Shared parental leave: enhanced pay

Tuesday 17th April 2018

The EAT has held, in Capita Customer Management Ltd v Ali, that CCM’s failure to provide Mr Ali with enhanced shared parental pay was not discriminatory.

Mr Ali wanted to take SPL to care for his child and help his wife who was suffering from postnatal depression. However, he was deterred from doing so because he would only be paid at the statutory rate. Male employees who transferred to CCM under TUPE received 2 weeks of fully paid paternity leave. TUPE transferred female employees were entitled to 14 weeks of fully paid maternity leave.

Mr Ali argued that, in addition to 2 weeks of paid paternity leave, he should also be entitled to 12 weeks of paid SPL and that to provide him with less was direct sex discrimination.

The ET considered that the purpose of both ML and SPL was to provide care for the child and concluded that Mr Ali could, after the 2 weeks of compulsory ML compare himself to a hypothetical female (transferred to CCM under TUPE as he was) who had given birth and who was taking leave to care for her child. The ET agreed that provisions in the Equality Act 2010 which allow for the special treatment of women in connection with pregnancy or childbirth, applied only to compulsory ML. Any difference in treatment thereafter was discriminatory.

Overturning the ET’s decision, the EAT took a different approach to identifying the appropriate hypothetical comparator. The EAT considered the primary purpose of ML was stated in both domestic and EU legislation as ensuring the health and wellbeing of a woman during pregnancy and after childbirth. Caring for a child is a consequence of, but not the purpose of, ML. SPL, by contrast, focuses on the child’s care and provides leave on the same terms for women and men.

Therefore, the EAT concluded that the correct comparator was a TUPE transferred female employee caring for her child using SPL. CCM provided SPL to men and women on the same terms and therefore failure to provide enhanced pay was not discriminatory.

The EAT also held that even if the ET’s choice of comparator had been correct, any difference of treatment would be protected by provisions in the Equality Act 2010, which the EAT considered applied beyond compulsory ML.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.