In its judgment, handed down on 24th May, the Court of Appeal has chosen to maintain the status quo, and arguably take a step back in relation to the equality of treatment of parents by employers after the birth of a child.
Ijeoma Omambala and Deshpal Panesar appeared for Mr Ali in his appeal seeking parity of pay for men with women taking leave to care for newborns after childbirth.
Two appeals, concerning similar subject matter, but different claims, were heard together:
(i) Ali V Capita
Mr Ali and his wife had a daughter in 2016. Mr Ali’s employer’s Shared Parental Leave Policy provided that men were entitled to full pay for care in the two weeks after birth. For the following 12 weeks (the 12 week period from weeks 3-14), men were entitled to (much lower) statutory shared parental leave pay only. In contrast Mr Ali’s wife, on maternity leave was entitled to full pay for 14 weeks after the birth of the child. Her doctor advised that she should return to work after 2 weeks, which she did. Mr Ali was obliged to take 12 weeks SPL at much lower pay than his wife would have been entitled to on maternity pay. He brought claim of direct sex discrimination which was upheld by the ET, but overturned by the EAT.
Mr Ali appealed to the Court of Appeal to overturn the EAT judgment on the basis that:
(ii) Chief Constable of Leicestershire Police v Hextall
Mr Hextall was a police officer. His force’s Maternity Leave Policy entitled women to 18 months leave on full pay. Men on Shared Parental Leave, in contrast were entitled only to the (lower) statutory rate of pay. Mr Hextall took SPL after the birth of his child. He brought a claim for indirect sex discrimination on the basis that the lower pay on SPL caused particular disadvantage to men. The ET dismissed his claim. The EAT overturned the ET, finding unlawful indirect sex discrimination.
The Chief Constable appealed, arguing that the Mr Hextall’s claim was, properly characterised, a claim for equal terms.
The Court of Appeal
Ali v Capita
Notwithstanding singling out Ijeoma Omambala’s submissions for their ability and sophistication, the Court of Appeal rejected Mr Ali’s appeal, finding:
As such Mr Ali’s appeal failed. Application has been made for permission to appeal to the Supreme Court.
The Court of Appeal overturned the EAT’s finding that Mr Hextall had been the subject of unlawful indirect discrimination on the basis that:
As such The Chief Constable’s appeal was allowed, and Mr Hextall’s claim for indirect discrimination dismissed. Application for leave to appeal to the Supreme Court has been made in Mr Hextall’s case too.
The decisions in these appeals not only maintain the status quo in relation to the differential treatment of parents during leave to care for newborn children, they also take step back. The decision in Hextall, as it stands rules out indirect discrimination challenges claims in principle. It is likely, whether in these cases or otherwise, that such differential policies will be the subject of future challenge.
Ijeoma Omambala and Deshpal Panesar appeared for Mr Ali.
shared parental leave; supreme court; court of appeal; judgment
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