After all the election and post-election chaos we thought it was best to get back to Case of the Week, which guarantees its readers a strong and stable supply of recent case law. Last week we looked at gross misconduct. This week we have two cases for you. The first is about shared parental leave and sex discrimination, the second concerns restrictive covenants.

Our first case is from the Employment Tribunal, instead of the usual Employment Appeals Tribunal, after their decision to make ET judgments available online. Shared Parental Leave was introduced in April 2015 and allows mothers to share their maternity leave with their partners. This applies to couples who are adopting, same-sex couples, co-habiting couples, and couples bringing up a child together even if the baby is from a previous relationship. As it is a new area of law, and, take up has been quite low, there has been little case law on this topic, although we have covered one previous ET judgment.

Like that case, today’s case is also from the ET, meaning it is not binding on future decisions. However, it does suggest the attitude to the issue and interpretation of the law the judiciary have adopted.

The question today is:

Is it fair to pay male employees 2 weeks enhanced paternity pay when female employees receive 14 weeks enhanced maternity pay?

Mr Ali, the Claimant, was employed by Capita, the Respondent. The Claimant and his wife had a baby and his wife was initially set to be the parent taking parental leave. However, she was diagnosed with post-natal depression and advised that returning to work would be good for recovery.

The Respondent had a policy for parental leave but it was held that fathers taking parental leave would only be entitled to statutory parental pay after the contractual 2 weeks’ enhanced paternity pay. The Claimant felt this was unfair as it meant fathers were at a disadvantage to mothers because they were allowed 14 weeks’ enhanced maternity pay.

He brought a claim for sex discrimination before the ET and the ET allowed the claim. They held that the aim of shared parental leave is to encourage men to take a greater role in raising children. It added that the choice of primary carer should be the parents’ choice and that choice should be free of any assumptions from the employer that women are better placed than men to care for children.

The Takeaway point:

This is the second case on shared parental leave to find that paying men and women differently for periods of parental leave is discriminatory. Whilst this case is only an ET case and therefore not binding on future decisions it does suggest a trend in the judiciary’s interpretation of what the aim of shared parental leave is – to promote a gender balance for parental responsibility and childcare.

It has been reported that the Respondent will appeal this decision and the result of that appeal will produce a binding EAT judgment on this topic. In the meantime, we suggest that employers ensure men and women are paid evenly whilst on any form of parental leave.