In this case, the tribunal appears to take the view that, beyond the compulsory maternity leave period, men and women are in the same position with respect to caring for newborns. It commented that whether men take on a greater childcare role is a matter of choice between parents, but that choice should be made free of generalised assumptions that the mother is always best placed to undertake the role and should get the full pay because of that assumed exclusivity.
Mr Ali was employed by Capita Customer Management Ltd (Capita) following a TUPE transfer from Telefonica in 2013.
Transferring female Telefonica employees were entitled to maternity pay comprising 14 weeks’ basic pay followed by 25 weeks’ SMP. Transferring male Telefonica employees were entitled to two weeks’ paid ordinary paternity leave and up to 26 weeks’ additional paternity leave which “may or may not be paid”.
Mr Ali took two weeks’ paid leave immediately upon the birth of his daughter. His wife was diagnosed with postnatal depression and advised to return to work. Mr Ali accordingly wished to take further leave to look after his daughter. He asked Capita about his rights and they informed him that he was eligible for SPL, but that they only paid statutory ShPP. Mr Ali asserted that he should receive the same entitlements as a transferring Telefonica female employee taking maternity leave. When his grievance to this effect was rejected, he issued proceedings in the employment tribunal, alleging direct and indirect sex discrimination.
In summary, Mr Ali claimed that, given that it was open to parents to choose which one of them took leave to care for their child, it followed that it was direct sex discrimination to then choose to pay a woman more than a man in respect of that leave. He argued that he had been deterred from taking SPL because he had been told he would only be paid ShPP.
The tribunal upheld the direct sex discrimination claim. It decided that:
- Mr Ali could compare himself with a hypothetical female colleague (one who took leave to care for her child after the two week compulsory maternity leave period).
- The denial of full pay amounted to less favourable treatment and the reason for this was Mr Ali’s sex.
