New Father Wins Landmark Employment Discrimination Case

A new father has successfully sued his employer for failing to give him full paternity leave rights in a case which is believed to be the first of its kind won by a man in England under new laws introduced two years ago allowing parents to share pay and leave.

Under laws which came into full effect from April 2015, couples living in mainland Britain are able to divide almost all the traditional maternity leave entitlement between them.

Call centre worker Madasar Ali wanted leave to care for his new daughter while his wife was ill with post-natal depression. His employer Capita told him that his pay would fall to the statutory minimum after two weeks. However, women at the firm who had worked, like him, as outsourced employees for communications company Telefonica, were entitled to 14 weeks on full pay.

Employer was in breach of Equality Act

Capita’s lawyer had argued at an employment tribunal in Leeds that as a man, Mr Ali was not eligible for maternity leave because he couldn’t give birth.

But the tribunal decided that Capita was in breach of the Equality Act 2010 and the company also went against the parental leave rules introduced in 2015 which allow parents to share up to 50 weeks of leave and 37 weeks of pay.

The Equality Act states that an employer must not discriminate against an employee by not affording access to “promotion, transfer, training or for receiving any other benefit, facility, or service.”

The outsourcing firm unsuccessfully cited European work directives in defence of its decision not to give Mr Ali full paternity rights.

Grievance process was “unnecessarily long”

Employment Judge Rogerson said:

“It was accepted that he was denied that benefit and was deterred from taking the leave and was less favourably treated as a man. Either parent can perform the role of caring for their baby in its first year depending on the circumstances and choices made by the parents. Inevitably more mothers will take primary responsibility from birth and immediately afterwards but that does not necessarily follow.”

The Leeds tribunal also found in favour of Mr Ali on a number of victimisation claims in connection with the way in which his request was handled by Capita. The claims relate to Mr Ali having his role changed without adequate justification, being coerced into signing gagging documents to ensure he would not discuss the tribunal and threatened with disciplinary action if he took leave to care for his child. The tribunal also heard that Mr Ali experienced an “unnecessarily long and drawn out grievance process.”

A hearing to decide on compensation for Mr Ali is set to take place in the near future and Capita has said it would appeal against the judgment.

Employers should clarify business reasons behind their family policies

Unlike other flexible work arrangements, shared parental leave is an employee’s right in the same way as maternity leave.

However, it should be noted that the decision in Mr Ali’s favour is based on the particular facts of the case and first instance tribunal judgements are not binding.

This means another employment tribunal which hears a similar case could reach a different conclusion on whether such a pay policy is discriminatory or not.

Other cases have supported the position that employers can provide better pay for female workers than male workers in recognition of their special status they hold due to giving birth and to support mothers to take time off from work after childbirth and during periods of breastfeeding.

Employers are advised to clarify the business reasons behind their current family policies.

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