The Employment Appeal Tribunal (EAT) ruling in the Ali v Capita Customer Management case puts pressure on working mothers to bear the brunt of childcare responsibilities following the birth of their child.

Commenting on the ruling in April 2018, leading pregnancy and maternity discrimination solicitor says, “Whilst the decision may come as a relief to employers who provide increased maternity pay, I think this is hugely disappointing, for working parents. The comment that the purpose of maternity pay and leave is to recognise the health and wellbeing of a woman is wrong.”

Summary of the case

Last year, the employment tribunal ruled that it was direct sex discrimination to allow new father Mr Ali only two weeks’ leave on full pay, when female staff were allowed to take 14 weeks’ leave maternity leave on their full salary.

Mr Ali’s wife had been advised to return to work to help with her post-natal depression. Under the company’s policy, Mr Ali was able to take two weeks’ fully paid paternity leave following the birth of his child, followed by a number of weeks’ annual leave.

The EAT found the employment tribunal had erroneously interpreted that Mr Ali’s circumstances were comparable to those of a woman who had recently given birth as both had leave to care for their child.

The EAT said the purpose of maternity pay and leave is to recognise the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.

The Judge in this case held that the employment tribunal had failed to consider the purpose of paid maternity leave in its decision and determined that it was not discriminatory to refuse the father the same rights as a new mother after the birth of a child.

“Women have to take a period of 2 weeks’ compulsory maternity leave to ensure that they can recover after the birth of their child.  If it is that they need longer, they have the ability to take up to a further 50 weeks of leave.  To base the decision on this completely undermines the rights of working mothers.  It is once again forcing the childcare responsibilities onto the mother and the working responsibilities onto the father – another Draconian move in what is meant to be a modern world.

The decision was welcomed by work-life balance charity Working Families, which hailed it an “important safeguard for the special employment protection needed for pregnant women and new mothers”.

If both parents had the right to increased pay, it would mean that the decision was placed in the hands of the parents, to decide how they split the leave, knowing that regardless of which parent took the leave, it would make no difference to their income.”

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