Since the introduction of Shared Parental Leave arrangements, many organisations providing enhanced maternity pay have considered whether similar increased benefits should be provided where fathers/partners access paternity and shared parental leave.
In the case of Ali vs Capita Customer Management, Ali succeeded in his claim for full pay during shared parental leave on the basis that the Company provided (under protected terms from his previous employer) 14 weeks full pay as an enhanced maternity package.
Ali took 2 weeks paternity pay followed by two weeks annual leave, however, his wife was diagnosed with postnatal depression and was advised to return to work to aid her recovery. In so doing, Ali spoke to his employer about taking further time off and they agreed that he would be able to access further leave under the recently introduced shared parental leave, but that he would only be entitled to statutory pay.
It was accepted that there was a distinction between maternity and paternity leave in the first two weeks following childbirth, given that mothers must take at least this fortnight to ensure they have physically recovered. However, beyond this Ali argued that leave arrangements and particularly pay should be available to both parents in order that they can make the decision as to who would take responsibility for caring for their child.
Ali succeeded in his direct discrimination claim and the tribunal pointed out that the “caring role he wanted to perform was not a role exclusive to the mother”.
Whilst this case is not binding on other tribunals, it is a reminder that those organisations providing enhanced maternity leave arrangements may want to consider the options available to either parent to ensure that employees have fair access to benefits.