An employee has a baby. You expect her to take some maternity leave. It’s a common way of doing things and your policies encourage it: she’s entitled (under your policies) to 14 weeks enhanced maternity pay and then 25 weeks at the statutory rate.

But then an employee decides to do things differently. His wife gave birth. They made use of the shared parental leave legislation that was introduced in 2015 and decided she’d return to work and he’d look after the baby.

Your policy says that although parental leave can be shared in that manner – the mother giving up some of her leave for the father (and the two do not both have to work for the same employer) – fathers are only entitled to two weeks at full pay, with the rest of the leave taken at the statutory rate.

Is that lawful?

As explained in more detail in the linked article, an employment tribunal has ruled that it’s unlawful in the case of Ali v Capita Customer Management. The facts were almost exactly as summarised above.

It is worth mentioning that the reason Mr Ali’s wife decided to return to work is that that’s what medical practitioners advised in light of her post natal depression. But in this egalitarian age, where roles are not fixed rigidly, there could be numerous reasons for such a decision. The mother may earn more, or may enjoy her job more, or the couple may make that decision to enhance their political vision of an equal world.

Mr Ali won his claim under sex discrimination – a female employee taking shared parental leave in otherwise similar circumstances would have been paid more than him. The employment tribunal said that the decision as to who will be the primary carer is a matter of choice for the parents, and should be made free of “generalised assumptions” as to gender roles. To pay fathers only the statutory rate, in practice, takes away that choice from most parents.

This has received little judicial attention, but two out of three employment tribunal cases on the matter have reached this decision. We require an Employment Appeal Tribunal or Court of Appeal decision to gain more certainty on the matter. But this is a logical and fair approach, and we would urge caution if employers wish to go against this decision.

If you require further advice on employment law matters, you may wish to join our community; on elXtr we have guides and documents to help you navigate employment issues.

If you have access to the legal helpline and want to discuss your specific circumstances with a qualified solicitor or barrister, please get in touch with them.

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