Ali V Capita Customer Management Ltd In April 2018 the Employment Appeal Tribunal (EAT) ruled that the rate of pay for a male employee taking shared parental leave cannot be compared to a female employee on paid maternity leave because the purpose of the leave arrangement is different. The case was taken to the EAT after an Employment Tribunal decision, published in June 2017, found that Madasar Ali was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay. The EAT found that the original tribunal had failed to consider the full purpose of paid maternity leave which it said was for “the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth” whilst shared parental leave is designed to aid parents with childcare. The EAT ruled that the correct comparator in this case, therefore, would be a female employee on shared parental leave and pay rather than a female employee on maternity leave and pay, and since shared parental leave is delivered on equal terms to both men and women, this would mean Ali was not subjected to sex discrimination. Hextall v Chief Constable of Leicestershire Police A month later, in May 2018, the EAT decided that employers who enhance maternity pay but only pay the statutory rate for shared parental leave (SPL) are potentially indirectly discriminating against men. Hextall claimed that if he had been a female police constable on maternity leave he would have been entitled to his full salary for the period he took SPL. He claimed indirect sex discrimination by Leicestershire Police Force, as the only option for men was SPL at statutory pay. The EAT found that this could have an impact on fathers because they have no other choice if they wish to take leave to care for their child, whereas mothers have the option of taking maternity leave.
The EAT referred the decision to a new employment tribunal to reconsider, and examine whether the practice, if found to be discriminatory, can be justified. The outcome of this case is still pending.
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IS THERE A GENDER GAP WHEN TAKING STATUTORY LEAVE OF ABSENCE?
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