Direct Discrimination – is there a requirement to enhance shared parental pay?
The Employment Tribunal (‘ET’) in Ali v Capita Customer Management Ltd  has held that it was direct sex discrimination not to pay a male employee enhanced shared parental pay, in circumstances where the company would have paid enhanced maternity pay to female employees.
Mr Ali wished to take shared parental leave (‘SPL’) to look after his daughter. He was informed by his employer that he would only be paid statutory shared parental pay (‘ShPP’), even though a female employee on maternity leave would have been eligible to receive 14 weeks’ basic salary as enhanced maternity pay. The ET upheld Mr Ali’s claim for direct sex discrimination concluding that:
- Mr Ali could compare himself with a hypothetical female colleague taking maternity leave; and
- the denial of full pay amounted to less favourable treatment and the reason for this was Mr Ali’s sex.
This decision contrasts with the ET’s decision in Hextall v Chief Constable of Leicestershire Police  where it was held that it was not discriminatory to offer enhanced maternity pay to a woman on maternity leave but only statutory ShPP to a man on SPL. This case concluded that the correct comparator for a man on SPL was a woman on SPL, not a woman on maternity leave.
We understand that both decisions have been appealed.
The appeal in Ali was received on 12 April 2017 and is still awaiting a hearing date. The appeal in Hextall was registered on 5 June 2017 and the Respondent has yet to lodge an answer to the appeal.
The decisions in Ali and Hextall are ET decisions and are therefore not binding on future tribunals. If the decision in Ali is upheld on appeal it will have wide ranging implications for employers in relation to their policies on SPL and ShPP.
Employers should keep an eye out for our update on the appeal decision in the Ali case and be prepared to review practices in relation to the payment of ShPP.
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