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It’s understood that both cases are being appealed and so it’s hoped that an appellate decision will clarify the position.In the meantime, employers would be wise to run a risk assessment on their policies in the event that the decision in Ali prevails.The Tribunal agreed that fathers now have an increased role in caring for children and in these circumstances, Mr Ali was in the best position to do so.In denying Mr Ali the enhanced pay usually paid to women on maternity leave, he had been subjected to less favourable treatment due to his sex and his discrimination claim succeeded.In 2016, men are being encouraged to play a greater role in caring for their babies.Whether that happens in practice is a matter of choice for the parents depending on their personal circumstances but the choice made should be free of generalised assumptions that the mother is always best placed to undertake that role and should get the full pay because of that assumed exclusivity.” This case has left us with conflicting Tribunal decisions, as the earlier case of Hextall v Chief Constable of Leicestershire Police, ruled that is was not discriminatory to pay enhanced maternity pay but only statutory shared parental pay.
Indirect sex discrimination Indirect sex discrimination is concerned with criteria, policies, employment rules or any other practices that are ostensibly neutral (in other words, they apply to everyone regardless of sex) but have the effect of disadvantaging employees or job applicants of one sex, unless the employer can show that they are justified.
Whilst on paternity leave, Mr Ali informed Capita that his wife was suffering from post-natal depression and that she had been advised by a medical professional to return to work to assist her recovery.
Mr Ali returned to work on 7 March 2016 and requested whether he could take further leave to care for his wife and daughter.
a father succeeded in his claim for direct sex discrimination when he was told that shared parental pay only entitled him to 2 weeks full pay following the birth of his child and not the 14 weeks granted to women on maternity leave.
It was accepted by all that the first two weeks’ maternity pay (the compulsory element) attracted special protection (and, in any event there would be no detriment here as parental leave entitles partners to two weeks’ leave at full pay).
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However, Mr Ali argued that, after this time, it was the parents’ choice who had time off to care for their child and that men and women should be treated equally in this regard.