Paternity pay – a step closer to a level playing field?

A thought provoking judgment ahead of Father’s Day

In time for Father’s Day, an Employment Tribunal handed down an interesting judgment this month ruling in favour of a father in a paid paternity leave discrimination case.

The case of Mr M Ali v Capita Customer Management Limited concerned a complaint by a father wanting equal treatment for the purposes of taking time off to care for his baby. The Judge ultimately ruled in his favour concluding that he had been unlawfully discriminated against by his employer because of his sex.

The Facts

Mr Ali brought sex discrimination and victimisation claims against his employer Capita Customer Management complaining that as a male employee he was entitled to only 2 weeks’ paid leave following the birth of his child, whereas a female employee would have been entitled to up to 14 weeks leave at full pay.

On 5th February 2016 Mr Ali’s daughter was born prematurely.  Mr Ali took 2 weeks’ paternity leave immediately following her birth and 1 week of annual leave.  At that time his wife had been diagnosed with post-natal depression and Mr Ali requested to take leave with full pay to care for his new born daughter as his wife was returning to work to aid her recovery.

Mr Ali’s employer told him that as the father he would only receive statutory pay and not full pay under the company’s shared parental leave policy.

Mr Ali argued that it was invalid, and discriminatory, to assume that a mother would be the main carer of a baby. He also claimed that denying him the same pay as a woman (the mother) performing that role took away the choice he and his wife wanted to make as parents.

Employment Judge Rogerson agreed with Mr Ali and upheld his sex discrimination and victimisation claims.

In his Judgment, Employment Judge Rogerson remarked that: “In 2016, men are being encouraged to play a greater role in caring for their babies. Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.”

What this means for employers

This case will be of interest to many employers, particularly those who currently offer enhanced maternity pay. Historically cases have generally supported the notion that it is legitimate to offer enhanced rights to women in the period following birth. However this case puts a marker in the sand and suggests Tribunals are ready to challenge accepted wisdom.

Despite the ruling in this case, at present there is no specific requirement for employers to enhance parental pay so that it is aligned with maternity pay provisions. This case is a first instance decision and therefore not legally binding, so future tribunals will be free to come to their own conclusion.

That being said this judgment provides a useful reminder to all businesses of the main aim of equality legislation – to create a level playing field. It is critical for employers to keep family friendly policies under review to ensure that they are not discriminatory in nature.

For now, until we have a binding authority from a higher ruling, employers should carefully consider their own parental pay provisions and think carefully about whether they can justify the commercial reasons behind their polices and differences in treatment of men and women.

For more advice on compliance with equality legislation or on any other HR issues, please contact Lisa Kemp on 01905 677047 or email

This article has been prepared for guidance and information purposes only and should not be substituted for legal advice.

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