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A father not paid enhanced shared parental pay was discriminated against

7 July, 2017

A tribunal has found that a male employee was discriminated against when his employer refused to allow him to take additional paternity leave at full pay.

Mr Ali had worked for Capita Customer Management since he was TUPE transferred from Telefónica in July 2013. He took two weeks of paid paternity leave after his daughter was born prematurely in February 2016, as well as two weeks of annual leave.

Unfortunately, Mr Ali’s wife was diagnosed with postnatal depression and was advised to return to work to aid her recovery.

Mr Ali discussed taking additional leave with his employer and the employer advised he could take the leave under the recently introduced shared parental leave rules, but that he would only be entitled to statutory pay.

Mr Ali questioned the pay, as under the terms of their contracts, a female employee who had been transferred from Telefónica to Capita would be entitled to 14 weeks’ paid leave following the birth of her child, and he was therefore being discriminated against.

Mr Ali argued that by not allowing him to take the leave at full pay, Capita were removing the choice he and his wife wanted to make in respect of childcare and shared parental leave.

The tribunal found in favour of Mr Ali’s direct discrimination claim, pointing out that the “caring role he wanted to perform was not a role exclusive to the mother”.

Whilst this is not a case binding on other tribunals, it is a worrying decision for employers operating enhanced pay for women on maternity leave. This case follows a recent similar case of Snell v Network Rail during which an employment tribunal found that employers who offer enhanced contractual pay for parents who take parental leave must offer the same terms to mothers and their partners to prevent discrimination.

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