Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Failure to enhance shared parental leave is not direct sex discrimination

The case of Capita v Ali concerns a father who took shared parental leave so that his wife could go back to work. The wife was suffering from PTSD and was advised that returning to work could help her condition.

The father was not entitled to full pay during his shared parental leave. The father claimed direct sex discrimination because he argued that a female equivalent worker would have received full maternity pay for maternity leave during the same period. 

The Employment Appeal Tribunal (EAT) found that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth, the level of pay being inextricably linked to this purpose. Therefore, the Tribunal found that a father’s situation is not comparable to a mother’s.

The EAT said that there is therefore no direct discrimination when a higher level of maternity pay is given than would be given to either sex on shared parental leave. The EAT held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.

Legal opinion

This case confirms the procedures that most employers already abide by and therefore no changes in policy are necessary. In any event, the case is useful to know as there is now appellate authority on the matter. 


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