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Father wins discrimination case against employer in first case since Shared Parental Leave introduced.

BY Donald MacKinnon
Employment Law & HR
BG Purple

A father has successfully won a sex discrimination case against his employer after he was only paid two weeks full pay for caring for his daughter...

A father has successfully won a sex discrimination case against his employer after he was only paid two weeks full pay for caring for his daughter where a woman would have received 14 weeks.

To give some background, Mr Ali transferred from Telefonica to Capita in 2013 and continued to retain his Telefonica terms of employment along with the benefit of Telefonica’s policies. 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. This case was examining Telefonica’s policies.

In February 2016 Mr Ali’s wife gave birth to their first child. Both mother and father took the 2 weeks’ paternity and maternity leave they were entitled to, and in the mother’s case, required to take. During this 2-week period Mr Ali informed his employer that his wife was suffering from Post Natal Depression and a doctor had recommended that she return to work as part of her treatment. Mr Ali then requested under Shared Parental Leave legislation to care for the child. Capita agreed to this but stated that as he was not a female he was only to be paid the lower statutory pay (in line with Telefonica’s policy on Shared Parental Pay). Mr Ali, after consulting with the employer was dissatisfied with their explanations, raised a grievance which was not upheld so raised a claim of direct sex discrimination and 5 acts of victimisation.  The employers’ counsel argued that Mr Ali was trying to compare himself with other female Telefonica employees, but could not do this because as a man he cannot give birth and therefore is not entitled to maternity benefits.

The tribunal ultimately ruled in Mr Ali’s favour and gave the following justification.

  • Mr Ali was not attempting to compare himself to a woman who has given birth as he agrees that the 2 weeks subsequent to birth are specifically associated with recovery after child birth, however, the tribunal agreed with Mr Ali that he could compare himself with other female Telefonica employees for the subsequent 12 weeks.
  • It was accepted he was denied full pay and was therefore deterred from taking the leave and was less favourably treated as a man. The reason why Mr Ali was treated less favourably was his sex.
  • The tribunal made reference to adoption leave, where the parent of either sex is entitled to be the ‘primary adopter’ and care for and bond with the child immediately even through neither parent had given birth to the child. It was decided that there should be no exclusivity given to women over the payment of the 12 weeks’ parental leave period immediately after the first 2 weeks’ post birth. The tribunal commented on the change in attitudes and fathers being encouraged to play a greater role and as such there should be no assumption that women are best placed to take on the role of primary carer.
  • In this instance, given the mental health of the mother, Mr Ali was best placed to care for the child and therefore asking for equal payment for performing the same role as a woman in those circumstances.

One of the major details of the case was that Mr Ali was part of a TUPE transfer from Telefonica to Capita who were ultimately bound by the Telefonica policy. This is significant as three years had elapsed between the transfer and the dispute.  

It should be noted that this case is not binding on employers, however it is an indicator of the tribunal’s changing attitudes towards fathers taking on parental caring responsibilities.

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