Father should have had equal right to time off after birth, rules tribunal

5 Jun 2017 By Hayley Kirton

Caring for a new child ‘is not a role exclusive to the mother’

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 M 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.

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

Ali wished to take more time off to care for his family and discussed taking extra leave with his employer when he returned to work in March. He was told that he could take the leave under the recently introduced shared parental leave rules, but that he would only be entitled to statutory pay.

Ali contended that, 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.

Ali accepted there was a distinct difference between maternity and paternity leave in the two weeks immediately following childbirth, given that mothers must take at least this fortnight off to help them physically recover. However, beyond those first two weeks, Ali argued that, by not allowing him to take further leave at full pay, his employer was effectively overwriting the choice he and his wife wanted to make to have him take more responsibility for caring for their child.

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

“In 2016, men are being encouraged to play a greater role in caring for their babies,” the judgment from Judge Rogerson read. “Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances, but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”

Naeema Choudry, employment partner at law firm Eversheds Sutherland, told People Management that this ruling would be “worrying” for many employers, as it is common to provide enhanced rates of maternity pay. However, she also stressed the decision was “not binding on other tribunals and so employers should not assume that a different tribunal presented with similar facts would reach the same conclusion”.

Choudry added: “Past case law suggests that employers may provide more generous benefits to women on maternity leave where they are aimed at alleviating the pressure on a mother to return to work prematurely during the period when she may be recovering from childbirth or breastfeeding, or are otherwise designed to offset occupational disadvantages that are specific to women who have given birth.”

Ali also brought five claims for victimisation, of which four succeeded and one was dismissed, alleging that he was treated negatively by certain members of management for raising a complaint about the paternity pay and for later bringing the issue to tribunal.

A Capita Customer Management spokesperson said: “We are aware of the tribunal level decision in relation to Madasar and as an organisation that takes equal opportunities very seriously, we are disappointed with the outcome in this case on that part of the claim where we were unsuccessful. We have lodged an appeal against that part of the claim where we were unsuccessful with the Employment Appeal Tribunal.”

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