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One to watch – Shared Parental Pay Discrimination?
A father has won his case at an employment tribunal by arguing that his employer’s failure to match enhanced rates of pay when taking shared parental leave (ShPL) amounted to direct discrimination

The government has previously issued technical guidance stating that there was no legal obligation to match enhanced rates of pay for parents taking shared parental leave (SPL), but there has been a view amongst many that failing to do so may result in a discrimination claim by a man and the first of such claims has now been made.

In this particular case, (Ali v Capita Customer Management Ltd.) the claimant wanted to take ShPL after his wife was diagnosed with post-natal depression and was advised by her GP to return to work. Capita paid enhanced maternity pay for the first 14 weeks of leave and enhanced paternity pay for two weeks, followed by statutory Share Parental Leave Pay (ShPP). The claimant asked to be paid the same higher rate as a woman on maternity leave. After his request was rejected, he pursued a tribunal claim that he was been discriminated against, both directly and indirectly. He only won his argument in relation to the direct discrimination claim.

The tribunal ruled that the he could compare himself to a female employee who was taking leave to care for her child, although this would not apply until after the two-week compulsory maternity leave period (this would be four weeks for a mother working in a factory environment.)

This is currently only an Employment Tribunal ruling so does not impact on other similar cases. However, it would seem likely that the case will be appealed and if Mr Ali wins that case and the Employment Appeal Tribunal supports the reasoning that the correct comparator is a woman on maternity leave, this would give claimants the ability to successfully claim direct discrimination, to which there is no defence. Employers paying enhanced rates of maternity pay would therefore need to review their arrangements.

If you pay enhanced maternity leave rates and are concerned about the potential implications of this case, please get in touch.
Posted on 28 Jun 2017

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