Failure to give enhanced shared parental pay was not discriminatory

In Capita Customer Management Ltd v Ali and anor, the Employment Appeal Tribunal (”EAT”) held that it is not direct sex discrimination for an employer to offer enhanced maternity pay and fail to pay enhanced shared parental pay in line with this.

The Facts

Mr Ali worked for Capita Customer Management Ltd (“CCM Ltd”) as a result of a TUPE transfer. Mr Ali claimed that he suffered direct sex discrimination when his employer failed to pay enhanced shared parental pay equivalent to the maternity pay that a woman on maternity leave for the same period would have received.

Mr Ali argued that as the SPL regime allows parents to choose which of them takes leave to care for their child following the mother’s two-week compulsory maternity leave period, it was discriminatory for the mother to be paid more than the father in respect of the remaining leave. Mr Ali accepted that there was a material difference in circumstances between himself and a woman on maternity leave during the two-week period of compulsory maternity leave; however, he argued that no further special treatment was justified under s13(6)(b) Equality Act 2010 (“EqA 2010”) – which states that special treatment afforded to a woman in connection with pregnancy or childbirth does not give rise to direct sex discrimination against men.

The tribunal upheld Mr Ali’s claim of direct discrimination. It accepted that he could compare himself with a hypothetical female employee taking leave to care for her child after the two-week compulsory maternity leave period. The tribunal considered it irrelevant that he had not given birth, since he was not comparing himself with a woman who had given birth but with a woman taking leave to care for her child after the end of compulsory maternity leave. As for whether the difference in treatment was exempted by s13(6)(b), the tribunal could not see why any preferential treatment for women should apply beyond the two-week compulsory maternity leave period. The tribunal observed that men are now being encouraged to take a greater role in caring for their children and that the choice of which parent should take on the greater burden of caring responsibility should be made free of assumptions that the mother is best placed to do so. It concluded that the caring role that Mr Ali wanted to perform was not a role exclusive to the mother. Thus, it was not special treatment in connection with pregnancy and childbirth.

The Appeal

CCM Ltd appealed to the EAT. The domestic and European legislation establishing rights to family-related leave was examined and it was found that it draws a clear distinction between the rights given to pregnant workers and those who have given birth or are breastfeeding, who by reason of biology are women, and the rights given to the parents of either sex to take leave to care for their child. The purposes of the two sets of rights are different, as are the circumstances of those to whom they are given. The EAT pointed out that the primary purpose of the EU Pregnant Workers Directive (No.92/85) is the health and wellbeing of the pregnant and birth mother, and requires Member States to provide for at least 14 weeks of maternity leave paid at least at the same level as statutory sick pay. In contrast, the EU Parental Leave Directive (No.2010/18) focuses on the care of the child and makes no provision for pay. Thus, in so far as the tribunal’s decision rested on the proposition that the purpose of the statutory maternity leave and pay given to a woman after the compulsory first two weeks is for the care of the child, it did not accord with the purpose of the Pregnant Workers Directive. While a woman on maternity leave will no doubt take care of her child, that is not the expressed or primary purpose of such leave. By contrast the purpose or reason for shared parental leave is for the care of the beneficiaries’ child.

In addition, the tribunal was found to have adopted the wrong comparator. In the EAT’s view, the correct comparator would be a woman on shared parental leave, who would have been given SPL on the same terms as Mr Ali received. The inevitable conclusion was that Mr Ali was not discriminated against. Furthermore, even if the tribunal’s proposed comparator had been correct, the tribunal erred in finding that the comparator’s more favourable treatment would not have fallen under S.13(6)(b).

The EAT noted that it may be that after 26 weeks the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child, and it may at that point be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. A claim based on such facts might well involve such a comparison.


Overturning the tribunal’s decision, the EAT held that Mr Ali taking shared parental leave is not comparable with a woman on maternity leave. The primary purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth and the level of pay is inextricably linked to the purpose of the leave. In contrast, the purpose of shared parental leave is the care of a child.

The payment of maternity pay at a higher rate was therefore lawful as it fell within the exception in the EqA 2010 as special treatment afforded to a woman in connection with pregnancy or childbirth.

What’s next?

We are awaiting judgment in Hextall v Leicestershire Police which is linked to this case and considers the question of whether it is indirect sex discrimination to pay men on shared parental leave at a lower rate than mothers on maternity leave.


If you have any queries regarding employment issues please get in touch with Donna Reynolds or Sharon Somerville in our Employment Team

Does the Advocate General’s Opinion give you (pregnant) pause for thought?

Pregnant workers have four main legal rights:

  • paid time off for antenatal care
  • maternity leave
  • maternity pay or maternity allowance
  • protection against unfair treatment, discrimination and dismissal during the protected period.

In Porras Guisado v Bankia SA and others (Case C-102/16) a case currently before the European Court of Justice, Advocate General Sharpston has given her view that pregnant workers should be protected against unfair treatment, discrimination and dismissal even before they have notified their employer of their pregnancy.

A “pregnant worker” is defined by the Pregnant Workers Directive as a worker who has informed her employer of her pregnancy in accordance with national legislation and/or national practice. In the UK, it is generally accepted that a woman will not benefit from the statutory protection on account of her pregnancy from unfair treatment, discrimination or dismissal until her employer is made aware that she is pregnant.  However, the Equality Act 2010 affords protection to workers during the “protected period” which starts at the beginning of a protected worker’s pregnancy and ends at the end of her additional maternity leave period or (if earlier) when she returns to work after the pregnancy.

In the Advocate General’s opinion, this tension should be resolved in favour of pregnancy workers despite acknowledging that an employer may unwittingly dismiss a pregnant worker whom it ought not to have dismissed. She has urged the ECJ to clarify the issue in its judgement.

The Advocate General’s opinion does not give employers the green light to ask women if they are, or intend to become, pregnant (that will cause trouble of a different kind!). At the start of her pregnancy, a woman may not even know herself that she is pregnant. However, until we have the judgement of the ECJ employers can re-visit both their workplace risk assessments (the Management of Health and Safety at Work Regulations require employers to identify risks “women of childbearing age”) and policies and procedures to check whether they could be placing pregnant women at a disadvantage and make the necessary changes to minimise any discriminatory impact.


Donna Reynolds is Accredited by the Law Society of Scotland as a Specialist in Employment Law, advising SMEs on employment law and HR issues in Fife, Edinburgh and across Scotland.

FREE EVENT: Are you sure your contractors are genuinely self-employed?

Employment status (worker, employee, self-employed, director or contractor) affects employment rights and employer responsibilities in the workplace. Thanks to recent high profile cases including Uber, Pimlico Plumbers and Deliveroo employment status is the hot topic of the moment. There are various legal challenges being brought in relation to the status of individuals working in the gig and ‘on-demand’ economies whilst the Government is tackling the future world of work with a focus on the status and rights of different types of worker.

Part of Fife Business Week 2017, this event will take a practical look at employment status and how you can best protect your business against unexpected claims.

Event Date:

Friday 10 November 2017

Start/Finish time:

8.30 am – 10.00 am

Event Venue:

CCW Business Lawyers Ltd, Crescent House, Carnegie Campus, Enterprise Way, Dunfermline, KY11 8GR

Further Details:

FREE EVENT: Employers’ Guide on How to Prevent Disability Discrimination Claims

It has been estimated that 30% of adult Scots qualify as disabled under the Equality Act 2010 and in a lot of cases people develop a condition rather than being born with it. At some point, most employers are likely to have a member of staff who becomes disabled. The Equality Act 2010 makes it unlawful to discriminate on the grounds of disability and it also affords protection to relatives, friends and carers of people with a disability.  The maximum awarded by the Employment Tribunal in April 2015 – March 2016 for a disability discrimination claim was £257,127 whilst the average award was £21,729.

Part of Fife Business Week 2017, this event is for employers who cannot afford to take the chance at getting the law wrong and having to pay out sums like this.

Event Date:

Wednesday 8 November 2017

Start/Finish time:

8.30 am – 10.00 am

Event Venue:

CCW Business Lawyers Ltd, Crescent House, Carnegie Campus, Enterprise Way, Dunfermline, KY11 8GR

Further Details:

FREE EVENT: Don’t be left holding the baby: 5 things you need to know about maternity leave and shared parental leave

Shared Parental Leave provides an opportunity for parents to take advantage of additional flexibility in the way they choose to care for a new arrival to the family. Eligible employees can decide whether the benefits of shared parental leave will work for them and how it could be used alongside, or instead of, traditional maternity or adoption leave. But do you know enough about ‘family friendly’ leave and pay to avoid expensive employment tribunal claims?

Part of Fife Business Week 2017, this event is for employers who would like to get to grips with maternity leave and shared parental leave.

Event Date:

Monday 6 November 2017

Start/Finish time:

8.30 am – 10.00 am

Event Venue:

CCW Business Lawyers Ltd, Crescent House, Carnegie Campus, Enterprise Way, Dunfermline, KY11 8GR

Further Details:

FREE EVENT: Controlling Social Media in the Workplace

Employment Tribunals have seen an increase in the number of cases related to internet and email misuse, and employers are right to be increasingly concerned about personal use of social media by employees.

Employment law is one of the most complex and fastest developing areas of law where small mistakes can be costly, and with the emergence of social media as a core communication method to potential customers, suppliers and employees alike, it essential you get this right.

We are therefore delighted to invite you to our next Employment Forum on 5 October. We’ll be joined by Jacqueline McGregor of JM Potential, a Business Coach and Organisational Development Consultant, and together we cover issues including:

* Ownership of social media/business contacts
* Bullying and harassment
* Misconduct
* Loss of productivity
* Damage to the employer’s reputation
* Social Media policies

As always, we hope that you will benefit from meeting with, and learning from, others who have experience of the very employee problem you may need help with. Chatham House Rule applies making for a relaxed and free discussion.

This event is taking place at our Dunfermline office, it’s free to attend and lunch will be provided. Book early to secure your place.

Don’t miss our events running on 6, 8 and 10th November from 12pm to 2pm during Fife Business 2017. Details can be found at here>>

Contact Donna Reynolds, Partner | Accredited Employment Law Specialist

When Office Romance Turns Fifty Shades Darker

It’s no surprise that so many of us meet  our significant other at work; we spend a lot of time with our work colleagues and often more time than we spend engaged in personal activities. However, cupid’s arrow doesn’t always strike it lucky and not everyone gets their happily ever. Office romances can often be as short lived as the good biscuits in the office biscuit tin and cause more trouble than a gust of wind to Donald Trump’s hair when colleagues fall out of love.

There’s no employment law against office romance and, in any event, it wouldn’t make much sense for employers to ban relationships at work because for some the risk of being caught would make it all the more fun. Love contracts are commonplace in the US but to dismiss employees for partaking in a ‘romantic liaison’ or office romance may result in claims of an unfair dismissal and sex discrimination.

And yet they have their obvious problems; one half of the couple doesn’t want things to end or the feeling isn’t mutual and flirting or sexual advances are most definitely not welcome. The possibilities for sexual harassment complaints are endless. There are also other issues to consider. For example, one half of the couple may have the power to make decisions over the other’s role. This could give rise to a conflict of interest and accusations of favouritism from jealous colleagues, and depending on their respective positions in the business how can the employer be sure that confidential information remains just that?

Rather than have a policy exclusively dealing with dating or romantic relationships between co-workers, employers should think carefully about any type of work relationship that could lead to some of the same issues arising in romantic relationships including favouritism, reduced productivity and conflict of interest and recognise that these relationships may occur between a variety of different individuals such as co-workers, clients and customers. Of course, the behaviour or conduct that will not be tolerated in the workplace including inappropriate physical contact or language or personal use of company communication systems should also be very clearly explained so there can be no doubt about the standards expected in the workplace whether the relationship in question is romantic or strictly professional.

Donna Reynolds is experienced in Employment Law and HR matters advising SMEs in Fife, Edinburgh and across Scotland.

Head over heels for workplace dress code policies?

If you had forgotten the furore in 2015 when Nicola Thorp was sent home from work, without pay, after refusing an instruction to buy a pair of shoes with at last a two-inch heel to replace the flat shoes she had worn to work, then you may have been reminded of it this morning. A Report published today by Two Commons’ committees has called for a review of equality legislation after gathering evidence of sexist instructions issued to hundreds of female worker. These included instructions to dye their hair blonde, to wear revealing outfits and to constantly reapply make up.

Every workplace has different dress codes and expectations, so a list of unacceptable clothing items in the policy makes it clear for everyone what is expected (it can deal with other items too such as tattoos, piercings, hair styles). However, the issue is whether the requirement to wear high heels is sex discrimination because a man would not be required to wear high heels. What may surprise many is different requirements for men and women in a dress code will not amount to sex discrimination, provided it applies a conventional standard of appearance and taken as whole, rather than item by item, neither men nor women are treated less favourably in its enforcement.

The Courts and Employment Tribunals have been clear about this principle; so, a requirement for men to have hair “not below shirt-collar length” which did not apply to a woman or a requirement for men to wear a shirt and a tie but women only to dress appropriately and to a similar standard is not discrimination. If we imagine then a dress code that requires women to wear two-inch heels and men to wear only Brogues would that be sex discrimination ?

The other point that appears to have angered some is the idea of employees being “forced” to comply with the dress code. Firstly, you’ll not be surprised to learn that an Employment Lawyer is all in favour of a policy on dress code; it is important in maintaining dress standards because while it may seem obvious to an employer that, say, flip flops should not be worn in the office, a clear list of do’s and don’t’s avoid the need to send someone home to change because it didn’t occur to him or her that it was inappropriate. Secondly, employers “force” their employees to comply with all manner of terms and conditions of employment, policies and procedures. That is the very nature of the employer/employee relationship. In return, the employee receives his or her wage. Unless it is being suggested an employee should be dismissed for their first offence (and as an Employment Lawyer I’m not) then it’s reasonable for an employer to ask its employees to comply with its policies and give any employee not complying the opportunity to do so before considering taking action under the disciplinary procedure.

The Report has found that current equality laws are inadequate. My own personal view is they are, and what employers need is help to better understand their rights and obligations. A good place to start is Acas and you’ll find useful information here

Donna Reynolds is an experienced Employment Lawyer and HR Adviser advising SMEs in Fife, Edinburgh and across Scotland.

Your mobile phone or your business?

The vast majority of employers have a policy on the use of personal mobile phones in the workplace where, typically, they either place an outright ban on employees using mobile phones during working hours or personal use is restricted to certain times of the day for example, during breaks or in the case of an emergency (and if you haven’t updated your policy to cover smartwatches you should). However, ask those same employers how many of them have disciplined employees for breaches of this policy and it’s likely to be relatively few. Of course, this may just be because their employees can be particularly adept at hiding what they’re really up to.

Well it seems that the success of your business may depend on how well you police the use of mobile phones in the workplace. Management of the England national rugby union team are cracking down on players’ use to improve their skills. Dr Sherylle Calder, the newly appointed Visual Awareness Coach, said “In the modern world, the ability of players to have a good awareness is deteriorating because of mobile phones. We will be working hard on awareness which helps you make effective decisions under pressure”. Reported here at Daily Mail

Could this apply to the world of business? And if so, what if all it took to improve your employees’ ability to make good decisions and therefore improve your business was a break from mobile phones? It might just be worth a try – just don’t forget to have Occupational Health on speed dial to help deal with the withdrawal symptoms.

Donna Reynolds is an experienced Employment Lawyer and HR Adviser providing legal and practical advice to employers in Fife, Edinburgh and across Scotland.

Fife Business Awards 2017


There’s still plenty of nail biting to go, but the first leg of the eagerly anticipated Fife Business Awards 2017 is over, with the shortlist announced for each of the 11 categories.  Here at CCW we are delighted that a number of our clients appear on the nomination list, a list that spans an intriguingly diverse range of businesses, from veg producers and craft brewers to signmakers and technical manufacturers.  It just goes to show the breadth of enterprise in Fife – it’s what these highly regarded awards are all about.

With categories from Most Enterprising Start Up to Success through Innovation, the awards are carefully designed to be relevant to organisations both large and small (similarly reflected in our own client list) and three companies have now been shortlisted for each award category.  That makes a total of 33 Fife businesses already singled out as potential prizewinners.  The shortlist is as follows:

Most Enterprising Start Up Company
• Bay Solutions Ltd
• Influx Recruitment Limited
• TaxAssist Accountants

Best Performing Business (Under 50 Employees)
• Kingdom Maintenance
• Sephra Europe
• Silverdyke Park

Best Performing Business (Over 50 Employees)
• Avenue Care Services
• Brand Rex-Limited
• Ingenico

Developing the Young Workforce
• CR Smith
• Independent Mobile Phone Consultants
• Realm Construction Ltd

Excellence in People Development
• Fairmont, St Andrews
• Fife Fabrications
• Kettle Produce

Success Through Sustainability
• Fife Fabrications
• Ivan Wood & Sons
• Kettle Produce

Excellence in Tourism
• Morton of Pitmilly
• Rufflets Hotel
• Silverdyke Park

Success through Export
• Eden Mill
• Ingenico
• Sephra Europe

Excellence in Customer Services
• Bright and Beautiful
• Byron Hairdressing
• Eclipse (IP)

Success through Innovation
• Fife Fabrications
• John Young Signs
• Peeltech

Excellence in Food & Drink
• Fairmont St Andrews
• Scottish Food Guide
• The Adamson

Organised by the Fife Chamber of Commerce with Business Gateway Fife, these awards are a serious showcase for everything the commercial sector of Fife can offer to clients, customers, employees and investors, and that is the principal reason CCW celebrate the awards each year.

All will be revealed at the gala dinner on Friday 31st March which will be held at Rothes Hall, Glenrothes, hosted by celebrity broadcaster, Grant Stott.  Last year’s event saw around 300 guests attending, testament to the fact that these awards are now a real highlight of the Fife business calendar.  We’re looking forward to both supporting and celebrating our clients, and indeed the whole of Fife’s business community.

For further information about the Fife Business Awards, please visit