Towards the end of last year, we reported on the case of Capita Customer Management Ltd v Ali.  It concerned a male employee, Mr Ali, who claimed that he had been subjected to direct sex discrimination when his employer failed to enhance his shared parental leave pay in the same way in which it enhanced a new mother’s maternity pay. 

Mr Ali succeeded before the Leeds Employment Tribunal, but his employers appealed.  We now have the decision of the Employment Appeal Tribunal (EAT).

The EAT’s decision

The EAT has ruled that the Leeds Employment Tribunal was wrong to find in Mr Ali’s favour.  In particular, the EAT concluded that Mr Ali could not compare his treatment as a man on shared parental leave with that of a woman on maternity leave, because the purpose of the leave is different.  Maternity leave has the purpose of protecting the health and well-being of the mother immediately before and after childbirth.  This is not the case with shared parental leave, which has the primary purpose of allowing the parent to care for the new-born child.  

Given the difference in the purpose of shared parental leave and maternity leave, the EAT concluded that a father on shared parental leave cannot compare his situation with that of a mother on maternity leave.  As a result, assuming that any period of shared parental leave attracts the same rate of pay, regardless of whether the employee is a man or a woman, the EAT concluded that no direct sex discrimination is taking place.

So what?

For obvious biological reasons, women have to be treated differently from men when it comes to certain rights relating to childbirth.  However, for some couples, this decision could prevent them from structuring their childcare arrangements in the way they would prefer.  They may find that the financial ‘penalty’ associated with using shared parental leave is simply too great.  

Having said that, if employers suddenly found themselves in a situation where they had to pay higher rates of shared parental leave pay, it might have had the effect of persuading them not to offer any enhancements at all (whether to mums or dads).  This would be a real shame and represents at least one reason why this decision is potentially a good thing.

Interestingly, the case has left open the question of whether the outcome might have been different had Mr Ali been able to show a difference in treatment much later in the maternity leave period, when the purpose of the maternity leave might be said to be the care of the new-born child, rather than the well-being of the new mum.  We will have to wait and see whether a suitable case comes along which allows an employee to run this particular argument.

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