When the Claimant and his wife found out that they were to have their first child, they decided together that the Claimant would stay at home to care for the baby while his wife returned to work. The Respondent’s Policy on Shared Parental Leave provided for those taking such leave to receive an amount equivalent to statutory maternity pay, whereas those on Adoption Leave were entitled to full pay. The Claimant compared his position to that of a female employee on Adoption Leave and contended that the Respondent’s Policy gave rise to direct discrimination. The ET dismissed the claim. It followed the decision of the Court of Appeal in Capita Customer Management Ltd v Ali [2019] EWCA Civ 900, in concluding that there were material differences (within the meaning of s.23 of the Equality Act 2010) between the scheme for Adoption Leave and that for Shared Parental Leave, so as to render inappropriate the Claimant’s chosen comparator.
Held, dismissing the appeal, that the predominant purpose of Adoption Leave was not simply to facilitate childcare and it was not the same as Shared Parental Leave. Furthermore, although one of the factors identified by the Tribunal as giving rise to a material difference was incorrect, it had reached correct conclusions in law in respect of the other matters relied upon, and its overall decision that there were material differences between the Claimant and his chosen comparator was correct. Accordingly, there was no prima facie sex discrimination in paying the Claimant less under the terms of the Respondent’s Policy than the amount that a female employee would receive when taking Adoption Leave.
[2021] UKEAT 0133 – 20 – 0331
Bailii
England and Wales
Updated: 08 October 2021; Ref: scu.667945
