Under the maternity policy, female employees taking maternity leave are entitled to enhanced maternity pay. The policy gives female employees with 26 weeks’ service the option of 14 weeks’ enhanced maternity pay, followed by 25 weeks at the rate of statutory maternity pay. Under the Telefonica policies, new fathers are entitled to two weeks on full pay, during their paternity leave. When Mr Ali’s wife gave birth, she was diagnosed with post-natal depression. Medical advice was that returning to work would assist her recovery.
Mr Ali was able to take fully paid paternity leave for the first two weeks following the birth of his child, followed by a number of weeks’ annual leave.
On his return to work, HR advised that he was entitled to shared parental leave. However, he was told that he would be entitled to statutory shared parental pay only. Mr Ali claimed direct sex discrimination in an employment tribunal.
While accepting that two weeks’ maternity leave is compulsory for new mothers, Mr Ali argued that, for the next 12 weeks, male employees should be given the same right to leave on enhanced pay as female employees.
Mr Ali argued that the employer’s policy assumes that a man caring for his baby is not entitled to the same pay as a woman performing that role, taking away the choice that he and his wife wanted to make for their baby. According to Mr Ali, this was not a valid assumption to make in 2016.
The employment tribunal upheld Mr Ali’s sex discrimination complaint in Ali v Capita Customer Management Ltd. It accepted that men are being encouraged to play a greater role in caring for their babies.
The employment tribunal believed that the role of primary carer is a matter of choice for the parents, but that the choice should be free of “generalised assumptions” that the mother is always best placed to undertake the primary role and should get full pay.
According to the tribunal, in this case Mr Ali was best placed to perform that role, given his wife’s post-natal depression.
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Employees not under duty to disclose intention to compete 9 June 2017
Are employees under a duty to disclose their intention to compete?
Probably not, held the Chancery Division in MPT Group v Peel .
Two moderately senior employees planned to set up a new company in competition with their employer after their restrictive covenants expired.
When questioned by their employer (after handing in their resignation) they lied about their intentions. The employer sought an injunction based misuse of confidential information, and also upon breach of the duty to answer questions truthfully. The judge held that whilst there was a general duty to answer questions truthfully, he was "reluctant to hold" that a departing employee is under a contractual obligation to explain his own confidential plans to set up in lawful competition - see para 86 of the judgment.
Although the court did not need to consider this, it might have reached a different conclusion if the employees were sufficiently senior to owe fiduciary duties to their employer.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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The Chartered Institute of Payroll Professionals
Policy News Journal
cipp.org.uk
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