Shared Parental Leave (“SPL”) is a fairly recent addition to the world of employment law. SPL came into force in April 2015 and provided parents with a more flexible way to take leave from employment in the first year after the birth of a child, or the placement of a child with them for adoption. The SPL legislation allows a mother to convert part of her maternity leave (except from the compulsory 2 weeks immediately following the birth of a child) to SPL, which can then be used by her partner, usually the mother’s husband or civil partner or the child’s father.
The recent case of Ali v Capita Management Limited ET1800990/2016 provided an interesting look into how SPL can work in practice.
The case involved a sex discrimination claim brought by Mr Ali who was employed by Capita Customer Management Limited following a TUPE transfer from a previous employer, Telefonica. After the birth of his child, Mr Ali spoke to his manager to inform him that his wife was suffering with post-natal depression. Mr Ali’s wife had been advised that a return to work would assist her recovery. Mr Ali therefore requested time off to care of his daughter.
At the heart of this case was that Mr Ali was permitted to take SPL under Capita’s policy however this was only paid at the statutory rate. Female colleagues that had transferred from Telephonica were entitled to 14 weeks full pay whilst on maternity leave. This apparent inequality led to Mr Ali raising a grievance and subsequently a tribunal claim for sex discrimination.
Capita refused to pay Mr Ali at an enhanced rate as they believed it would be unfair to Capita employees who were only entitled to statutory pay.
The tribunal ruled that the compulsory two week period for woman following the birth of a child is specifically to help the woman to recover after birth, and is therefore unique to women. Capita attempted to argue that the subsequent 12 week period was also unique to women to allow them to facilitate the care of the child. The tribunal however recognised that men are encouraged by society to play a greater role in caring for their children, and that families should have the opportunity to make the choice as to how much of a role the father takes. As can be seen with Mr Ali, he was better placed than the child’s mother to care for the baby in the months following the birth. The tribunal stated that this caring role was not exclusive to mothers. Since this was the case, the tribunal found that Mr Ali had been subject to direct sex discrimination by being offered a lower rate of pay than women.
It should be noted that this case is only a decision of the employment tribunal and it is likely that it will be appealed further and hopefully the Employment Appeal Tribunal will be able to provide further guidance on this issue. It does however serve as an interesting example of the way in which shared parental leave can work and shows how equality is at the heart of shared parental leave.
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