Employment Law Cases

Ali v Capita Customer Management Ltd

An employment tribunal has held that a male employee was subjected to direct discrimination when his employer refused to allow him to take 12 weeks shared parental leave at full pay when a female comparator would have been entitled to it.

Mr Ali worked for Capita, having TUPE transferred in from Telefonica. Under the TUPE-transferred terms and conditions, he was entitled to, and took, two weeks fully paid paternity leave following the premature birth of his daughter.

Mr Ali’s wife was diagnosed with post-natal depression and advised to return to work to help her recovery. Mr Ali wanted to take more time off to care for his daughter. HR told him that he could only take shared parental leave, paid at the statutory rate. A similarly TUPE-transferred female employee was entitled to 14 weeks’ leave at full pay following the birth of her child. He wasn’t satisfied with this and brought a tribunal claim.

He accepted that there was a difference between paternity and maternity leave in the two weeks immediately following childbirth. But, for the remaining 12 weeks he argued he should receive the same paid leave entitlement as a female colleague who had transferred from Telefonica - and the fact that he was not eligible for this amounted to direct discrimination on the grounds of sex. By not allowing him to take further leave at full pay, Capita was effectively overwriting the choice he and his wife wanted to make to have him take more responsibility for caring for their child.

The tribunal upheld his direct discrimination claim. Judge Rogerson said: ‘It was not clear why any exclusivity should apply beyond the two weeks after the birth … men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances, but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity’.

Link to judgment: http://www.bailii.org/uk/cases/UKET/2017/1800990_2016.html

Comment

This case was decided on its own particular facts and, as a tribunal decision, it is not binding on other tribunals. Capita has said that it will appeal the decision. But, if this case indicates a direction of travel, employers will have a pressing reason to revisit their shared parental leave policies.