Ali v Capita Customer Management Ltd

Mark: This case went to the Employment Appeals Tribunal in December 2017. We're still waiting for that decision, but at the core of this case, there's a question that if a man is off on a period of shared parental leave, why would he be entitled to just receive the statutory flat rate of pay rather than occupational maternity pay that a woman would have being off for the same period of time?

The key thing here is that the ethos of the shared parental leave legislation is that once you go beyond the two weeks compulsory maternity leave, the role of the man and the woman is exactly the same. It's about rearing the child, care and responsibility for the child. The biological link between the mother and the child, etc., is really irrelevant for the purposes of the employment law. So could you justify the man having a flat rate of £140.98 a week and the woman doing exactly the same role on enhanced occupational maternity pay?

Scott: Because she worked for an employer who used enhanced maternity pay, and now men get rights to look after children. That flies in the face of the surrogacy cases that went through the European court which found that the maternity protections were for the birth mother, not for the surrogate mother, who, as far as you're concerned, is doing exactly the same purpose, i.e. looking after a child, but there's a recuperation element in maternity that you certainly don't get in shared parental leave for the man.

Mark: Absolutely, and the key issue here is there are some focal differences. Obviously, shared parental leave can't kick in until after the child's born. The woman can go off on maternity leave if she doesn't have a partner.

At the minute, there's an Employment Tribunal case, Hextall v Leicestershire Constabulary. It will be brought into the equation one way when we see the appeal decision come out in Ali, and we're really waiting to see what happens here because some employers have seen the writing on the wall, as they see it. For example, Aviva have decided to give equal pay in terms of the contractual enhancements for men and women who are off on shared parental leave so there's no difference.

Scott: But if it were one couple in the one workplace, they wouldn't get both. One of them would get the parental leave or the maternity leave.

Mark: Yes.

Scott: The difficulty is if you have an employee who is off on maternity and then another one comes along and says, "I want to take shared parental leave. Therefore, I would get it if I were an employee, and I should have the right to full pay to go look after my child, and I'm a man."

Mark: That's right. There's very little case law on this. Snell v. Network Rail, which was last year, the Ali case, and the Hextall case are really the only three things that we have. At the centre point of the case you'll probably find in the EAT is who the comparator is, who the proper comparator is, because that will be central to it and the distinctions in the Hextall case. It will be interesting to see what the EAT have to say about that.

Scott: So watch this space.