In the first case of its kind Ijeoma Omambala of Old Square Chambers, acted for the Respondent and successfully resisted a sex discrimination challenge to an employer’s discretionary additional paternity pay scheme.
An employment tribunal held that an employer did not discriminate by paying the statutory rate of additional paternity pay to a male employee on additional paternity leave (APL) when a female employee on maternity leave would have been entitled to her full basic pay.
Accepting Ijeoma’s analysis of the domestic and European legislative framework and case law, the employment tribunal rejected claims of direct and indirect sex discrimination.
On direct sex discrimination the employment tribunal held that the correct comparator in the circumstances of this case was a female employee on APL and concluded that she would have been treated in the same way as the Claimant. The tribunal also held that had there been a difference in treatment the reason it was because of type of leave and not because of sex. The employment tribunal also concluded that the exception in section 13(6)(b) of the Equality Act 2010 would have applied to any direct sex discrimination since it was satisfied that the treatment complained of was connected to pregnancy and childbirth and was proportionate.
On indirect discrimination, the Respondent conceded that a PCP identified by the employment tribunal of paying full pay to women on maternity leave 20 weeks after the birth established the necessary group disadvantage. However, the employment tribunal accepted that the policy of enhancing maternity pay but not APL was addressed to a legitimate aim, namely to recruit and retain women in a male-dominated workforce. On the evidence before it the employment tribunal was also satisfied that the Respondent’s policy was proportionate.
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