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More Confusion in Shared Parental Pay

by Laura McManus

Following on from our previous article highlighting the difference between Maternity Leave and Shared Parental Leave, there has been further case law on the point of whether or not a father is entitled to Shared Parental Pay at the same level as Enhanced Maternity Pay.

A recent case of Ali v Capita Customer Management Limited ruled that the failure to pay a father enhanced shared parental pay at the same level as maternity pay amounted to indirect sex discrimination. Like all cases, it turned on its own particular set of facts, and it seems that in this context Mr Ali had the sympathies of the Tribunal as his wife had been diagnosed with post-natal depression and it was on the advice of her doctors that she returned to work and her husband took up the role of primary care giver to their baby. The Tribunal stated that it was not entitled to tell a family that a mother should be the primary care giver for a child, as it may not always be the case that the mother is best placed to do so.

Much like the previous case law of Snell v Network Railways (discussed in our previous article here) the decision is from a Court of first Instance and therefore is not binding. It is likely that the Ali case will be appealed to the Employment Appeals Tribunal (who will give a binding decision) and therefore, the best advice at this point in time, for employers faced with requests by a man asking for enhanced shared parental pay, is to consider each request on a case by case basis, taking into consideration the reasons for such a request, and the reasons why the company would either refuse or grant the application.

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