EMPLOYMENT

Shared Parental Leave Policy Found Discriminatory

As you will no doubt recall the Shared Parental Leave Regulations (Northern Ireland) 2015 were introduced in April 2015 with significant attention in both the media and employment law forums. The Regulations allowed for the voluntary sharing of leave and pay entitlement between parents following the birth or adoption of a child. While statistics suggest that a small proportion of employees have availed of this new right, cases concerning disputes arising from its implementation are starting to filter through to Employment Tribunals nevertheless.

Last month judgement was handed down by an English Employment Tribunal in the case of Ali v Capita Customer Management Ltd ET/1800990/2016. This case concerned Mr Ali who worked for Capita as a Business Customer Advisor. In July 2013 his employment had transferred from Telefonica to Capita under TUPE. His terms and conditions were preserved at this time including the retention of Telefonica’s policies which contained an enhanced maternity pay policy.

Mr Ali’s daughter was born in February 2016 at which time he availed of two weeks paid paternity leave. Within his paternity leave period Mr Ali advised his line manger that his wife was suffering from post natal depression and in March 2016 he sought to take shared parental leave as his wife’s doctor believed a return to work might assist with her recovery.

Capita advised Mr Ali that although he could avail of shared parental leave he would only be entitled to statutory payments during this period. Mr Ali asserted that this position was discriminatory in light of the fact that the maternity policy applicable to his employment provided for 14 weeks enhanced payment. Mr Ali further raised a grievance claiming direct and indirect discrimination which was rejected by Capita’s Operations Manager.

In upholding Mr Ali’s complaint the Tribunal stated;

‘In these particular circumstances the Claimant as the father was best placed to perform that role given his wife’s post natal depression. The Respondent knew those were the circumstances in which he was seeking to take the leave in 2016. He was asking for the leave to perform the same role his female comparator would have performed with full pay. The medical advice was for his wife (the mother) to return to work for her well being and for the Claimant (the father) to perform the role of caring for the child. He could and wanted to take that role on 2 weeks after the birth but was deterred because of the pay. The caring role he wanted to perform was not a role exclusive to the mother. It was not special treatment in connection with pregnancy and child-birth it was about special treatment for caring for a newborn baby. This was not about denying full pay to a women, it was about equality of treatment in relation to pay for the Claimant to access the same benefits for performing the same role.’

Whilst every case needs to be judged on its own merits employers should take note that failure to match shared parental pay with their maternity pay policies is likely to give rise to similar claims for discrimination.

As ever we recommend that you take specific legal advice should you have any concerns.

If you or your business require advice in relation to discrimination in the workplace please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Department

 

 

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