We learned of a sex discrimination claim that is interesting. In April 2015 the Government introduced legislation which allowed parents to share parental leave. A couple who are both in paid work and bringing up a child together can share leave following the birth (or adoption) of their child.

But if an employer pays enhanced pay to employees on maternity leave, and not to employees on shared parental leave, there is a risk of sex discrimination claims from men who take shared parental leave as they are being treated less favourably than women taking on maternity leave. The law is currently unclear.

In this case a dad requested paternity leave from his employer, Capita, to care for his daughter after his wife fell ill with postnatal depression. He was told he would only get two weeks’ full pay whereas the legislation allows for up to 50 weeks of leave, 37 of which are paid and can be shared between the parents depending on their circumstances and choices.

He sued Capita for sex discrimination and won. The judge said: “There may be circumstances where different choices are made to suit the parents and their particular circumstances, like the choice the claimant wanted to make because of his wife’s postnatal depression.” This was also the view of the tribunal, which found that the decision went against the shared parental leave regulations.

Capita argued that as a man, the claimant was not eligible for parental leave nor was he entitled to the same rate a woman would be –  because he couldn’t give birth. That was found to be contrary to the Equality Act 2010, which states that an employer must not discriminate against an employee by not affording access to ‘promotion, transfer, training or for receiving any other benefit, facility or service.’

It is one of the first times a man has won a tribunal of this kind in England since the introduction of the shared parental leave legislation two years ago. Also, a similar sex discrimination claimoccurred in 2016 where an employment tribunal awarded £28,000 to a Network Rail employee over his employer’s policy of giving a period of full pay to mothers on shared parental leave, but paying only statutory shared parental pay to partners and secondary adopters.  first instance tribunal

Employment  Tribunal cases are not binding on other tribunals but often followed. So it will be interesting to see how future claims of a similar nature are concluded.

Capita has lodged an appeal at the Employment Appeal Tribunal against the sex discrimination claim in which they were unsuccessful.

In the meantime, it would be wise for employers to clarify the business reasons behind their current family policies, while keeping their eyes open for whether this case continues up the appeals ladder.

By Gina Mukova
Image used under CC courtesy of Haiderz