Capita Customer Management Ltd v. Ali (Sex Discrimination), Court of Appeal - United Kingdom Employment Appeal Tribunal, April 11, 2018,  UKEAT 0161_17_1104
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Capita Customer Management Ltd v. Ali (Sex Discrimination)|
|Resolution Date:||April 11, 2018|
Appeal No. UKEAT/0161/17/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 20 & 21 December 2017
Judgment handed down on 11 April 2018
THE HONOURABLE MRS JUSTICE SLADE DBE
CAPITA CUSTOMER MANAGEMENT LIMITED APPELLANT
(1) MR M ALI
(2) WORKING FAMILIES (INTERVENOR) RESPONDENTS
Transcript of Proceedings
|For the Appellant |MR ANDREW BURNS |
| |(One of Her Majesty’s Counsel) |
| |and |
| |MS LUCINDA HARRIS |
| |(of Counsel) |
| |Instructed by: |
| |Irwin Mitchell LLP Solicitors |
| |2 Wellington Place |
| |Leeds |
| |LS1 4BZ |
| | |
|For the Respondent |MR DESHPAL PANESAR |
| |(of Counsel) |
| |Direct Public Access |
|For the Intervenor |Written submissions |
| |MR CHRISTOPHER MILSOM |
| |(of Counsel) |
SEX DISCRIMINATION - Direct
SEX DISCRIMINATION - Indirect
VICTIMISATION DISCRIMINATION - Detriment
A father who wished to take shared parental leave so that his wife could go back to work claimed direct sex discrimination in not being entitled to pay at the higher maternity pay rate for 12 weeks after the 2 weeks compulsory maternity leave but only that paid for shared parental leave.
The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the Claimant father were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken. Shared parental leave is given on the same terms for men and women. Hofmann v Barmer Ersatzkasse  ICR 731 and Betriu Montull v Instituto NSS  ICR 1323 considered. Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010 section13(6)(b). Eversheds v Legal Services De Belin  ICR 1137 considered.
Appeal from finding of direct sex discrimination allowed. Finding set aside.
Appeal from three findings of victimisation under Equality Act 2010 section 27 dismissed. Decision in respect of one finding of victimisation was not Meek-compliant. Appeal allowed in respect of this claim of victimisation allowed. Claim of victimisation remitted for hearing before the same Employment Tribunal, if practicable.
THE HONOURABLE MRS JUSTICE SLADE DBE
This appeal is linked to that of Mr A Hextall v The Chief Constable of Leicestershire Police. Both appeals raise the issue of whether it is sex discrimination giving rise to a claim, for an employer not to pay a man who takes shared parental leave following the birth of his child, at the same rate as women on maternity leave. Two different Employment Tribunals hearing the claims by the different Claimants reached different conclusions. Mr Ali succeeded in his claim. The claim by Mr Hextall was dismissed.
Capita Customer Management Limited (“the Respondent”) appeal from the decision of Employment Judge Rogerson and members (“the ET”) who by a Judgment sent to the parties on 17 March 2017 (“the Judgment”) upheld the claim by Mr Ali (“the Claimant”) of direct sex discrimination for not being entitled to pay at the same rate as that paid to a woman on maternity leave for twelve weeks after the expiry of his two weeks entitlement to paternity leave and paternity pay.
At first reading the claim appears, as characterised by Employment Judge Camp in Hextall v The Chief Constable of Leicestershire Police, “bold and ingenious”. The arguments advanced by Mr Panesar, counsel appearing for the Claimant in the Employment Appeal Tribunal (“EAT”) seek to defend the conclusion reached by the ET by a careful analysis and application of the statutory provisions underpinning the respective rights of parents to leave and pay following the birth of their child. The position of Mr Burns QC and Ms Harris for the Appellant Respondent characterises the issue on appeal more simply. Counsel for the Respondent set the tone in the introduction to their skeleton argument:
“1. This Appeal raises two issues. The first is straightforward: it is not sex discrimination for an employer to make different payments for maternity leave and for shared parental leave. The two types of leave are not comparable. …”
The second issue on this appeal is: the challenge to the finding by the ET that the Respondent had victimised the Claimant for having asked for and made a claim in respect of the same rate of pay as a woman on maternity leave.
Mr Milsom has made written submissions on behalf of Working Families, the Intervenor, to be taken into account in this appeal and that in Hextall. The submissions provide a useful guide to the provisions relating to maternity and parental protections. The Intervenor does not seek to adopt the position of any party. The Intervenor takes the position that the EAT should not reach a conclusion whose unintended consequences lead to a diminution of the rights of the mother or of parents. The written submissions on behalf of the Intervenor set out their position:
i. The framing of any direct discrimination complaint must not lead to the undermining of the unique position of the biological mother or give rise to any risk of “levelling down” protection; Roca Alvarez [Roca Alvarez v Sesa Start Espana ETT SA  CMLR 28];
iii. Shared parental leave enables families choices about who cares [for] the child during the first year of life and had the stated purpose of encouraging fathers to take a more active and engaged role in bringing up their children. We suggest that after a period of 26 weeks (or ordinary maternity leave) the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave;”
The appeal with related facts, submissions and law from the finding of direct sex discrimination will be considered before those relevant to the appeal from the findings of victimisation.
Appeal from Finding of Direct Sex Discrimination
The ET set out the Respondent’s maternity, paternity and adoption leave policies which applied to transferring Telefonica employees. Telefonica policies applied to the Claimant. The ET held:
“4. The ‘entitlement’ to pay for maternity and parental leave was not a contractual term but was contained in separate Telefonica policies that transferred with the transferring employees.
Female Telefonica transferring employees were entitled to maternity pay in accordance with the Telefonica maternity policy dated December 2011. The policy provides three options for maternity pay of up to 39 weeks. If an employee had 26 weeks service she was entitled to receive the most favourable of 3 options from:
“1. 14 weeks company maternity pay followed by 25 weeks lower rate statutory maternity pay.
6 weeks higher rate statutory maternity pay followed by eight weeks company maternity weeks and then 25 weeks lower rate statutory maternity pay.
6 weeks higher rate statutory maternity pay followed by 33 weeks lower rate statutory maternity pay.”
Clearly the most favourable option was 14 weeks basic pay followed by 25 weeks statutory maternity pay for the balance of the leave.
4.1. The Claimant as a father and male employee was entitled to paternity leave and pay under the Telefonica policy. That policy also applied to same sex couples providing you were the partner of the mother and would “share responsibilities for bringing up your new baby”. Page 47 of the policy deals with paternity leave and provides up to 2 weeks paid Ordinary Paternity Leave (OPL) and up to a further 28 weeks Additional Paternity Leave (APL), which ‘may or may not be paid’.
“Ordinary Paternity Leave (OPL) is paid time out to enable you to spend time with your newly born baby (or newly adopted child). Ordinary paternity leave is up to two weeks leave. The earliest you can choose to start your paternity leave is immediately your baby is born or within eight weeks after the birth. The payment provisions for the leave are that you will be paid as usual during your ordinary paternity leave”.
The Claimant was therefore entitled to, and was paid the benefit of his full pay for two weeks after the birth of his daughter to spend time with his “newly born baby”. A parent adopting a child would also get that leave and pay.
4.2. For parents of either sex adopting a child the statutory provisions applied and provided for Statutory Adoption Leave (‘SAL’) of up to 52 weeks and an entitlement to 39 weeks of Statutory Adoption Pay (SAP). SAL comprises of 26 weeks Ordinary Adoption Leave (OAL) which can start from the date of the child’s placement or from a fixed date up to 14 days before the expected date of placement, followed immediately by 26 weeks of Additional Adoption Leave (AAL).
The ET set out the background facts relating to the sex discrimination claim.
“5. The background facts to the sex discrimination complaint were not disputed and are as follows:-
5.1. The Claimant is a current employee of the Respondent working now as a Business Customer Adviser...
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