Capita Customer Management Ltd v Ali UKEAT/0161/17/BA

Appeal against a finding of sex discrimination on the basis that a father was not paid as much for shared parental leave as for maternity leave. Appeal allowed.

The issue here was whether it is sex discrimination for an employer not to pay a man who takes shared parental leave following the birth of his child at the same rate as women on maternity leave. The ET held that the father had suffered sex discrimination (another ET held the opposite view in a similar case of Hextall v The Chief Constable of Leicestershire Police). The Respondent appealed.

The EAT allowed the appeal. The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the Claimant father were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken. Shared parental leave is given on the same terms for men and women. Hofmann v Barmer Ersatzkasse [1985] ICR 731 and Betriu Montull v Instituto NSS [2013] ICR 1323 considered. Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010 section13(6)(b). Eversheds v Legal Services De Belin [2011] ICR 1137 considered.

Published: 11/04/2018 17:49

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