Capita Customer Management Limited v Ali

A father taking shared parental leave cannot ordinarily compare himself, for direct sex-discrimination purposes, with a birth mother taking maternity leave. Equality Act 2010 section 23 requires regard to the type and purpose of the leave and its associated pay. Maternity leave and pay protect the health and wellbeing of a pregnant woman or new mother. Shared parental leave is for childcare and is available to either sex on the same terms.

Enhanced maternity pay is special treatment connected with pregnancy or childbirth within section 13(6)(b). A protected act and a detriment alone do not establish victimisation, but knowledge of the protected act and unexplained detrimental treatment may justify an inference. Reasons must adequately explain why an employer's explanation was rejected.

The Employment Tribunal upheld Mr Ali's claim that Capita directly discriminated against him by paying statutory shared parental pay rather than the enhanced maternity pay available to eligible female transferees. He wished to take leave after his daughter's birth so that his wife, who had post-natal depression, could return to work.

The Tribunal also upheld four victimisation complaints arising from management action in July and December 2016 after Mr Ali had raised a discrimination grievance and presented proceedings. Capita appealed. The central issues were whether a father on shared parental leave could compare himself with a mother on maternity leave, whether enhanced maternity pay was protected special treatment, and whether the victimisation findings were legally and adequately reasoned.

1. Appeal allowed in part. The finding of direct sex discrimination was set aside and that claim dismissed. The findings of victimisation concerning 14, 27 and 28 July 2016 were upheld. The finding concerning 21 December 2016 was set aside and remitted for rehearing.

2. The Tribunal had erred under Equality Act 2010 section 23(1) by treating a father seeking shared parental leave as comparable with a woman on maternity leave merely because both might care for a child. Maternity leave and its pay are inseparable. Their purpose is the health and wellbeing of the pregnant woman or new mother, whereas shared parental leave is for childcare and is available on equal terms to men and women.

3. The correct comparator was a woman taking shared parental leave. As she would receive the same shared-parental-pay rate, the claimant had not been treated less favourably because of sex. The reasoning in [1985] ICR 731 and [2013] ICR 1323 supported the conclusion that maternity protection may be reserved to the mother.

4. In any event, the enhanced maternity pay was special treatment afforded to a woman in connection with pregnancy or childbirth within section 13(6)(b). The Tribunal had wrongly treated it as payment for performing the childcare role. The proportionality analysis considered in [2011] ICR 1137 did not arise on these facts.

5. For victimisation, a protected act and detriment alone do not shift the burden under section 136. Here, however, the manager responsible for the July acts knew of the protected acts, and the Tribunal found an ultimatum, contradictory explanations and deliberate misinformation. Those facts entitled it to infer victimisation if no adequate explanation was provided.

6. The December finding was not Meek-compliant. The Tribunal did not give adequate reasons for rejecting the manager's explanation for the erroneous formal disciplinary process. That discrete complaint was remitted to the same Tribunal, if practicable.

• Employment Appeal Tribunal: Capita's appeal was allowed on direct sex discrimination and on the victimisation complaint concerning 21 December 2016. The latter complaint was remitted for rehearing. The appeal was dismissed as to the victimisation findings concerning 14, 27 and 28 July 2016.
• Employment Tribunal: By a judgment sent on 17 March 2017, the Tribunal upheld the direct sex-discrimination claim and four victimisation complaints.