The tribunal rejected the employer’s argument that an exception to sex discrimination under the Equality Act 2010 applied. As well as this case, the judgment also covered another separate case, Z v A Government Department (Case C-363/12, 26 September 2013, ECJ). View our privacy policy, cookie policy and supported browsers. XA141/10Issue: Associative pregnancy discrimination. From that point onwards she is in a situation comparable with that of a biological mother. The job must be suitable and appropriate for the employee to do in the circumstances and the place and other terms and conditions not substantially less favourable than her previous contract. Ali accepted that in the two weeks after the birth, he received his paternity leave at full pay, while his wife received compulsory maternity leave to help her physically recover. However it is not sex discrimination to dismiss for a maternity related absence after the end of maternity leave, if a man with the same absences would have been treated in the same way. Any period of absence for an illness connected with childbirth or pregnancy after maternity leave may still be sex discrimination depending upon whether any similar period of sickness of a man would have been treated differently. The intended commissioning mother, who was not pregnant herself but has an infant in her care and possibly also breast feeds it, needs protection when she starts caring for the child and assumes the role of mother. The maternity policy promoted recruitment, retention and development of women and this aim of recruiting more women to its male dominated workforce was enough to objectively justify the policy of paying men and women differently. Paternity leave benefits are leave credits extended to married male employees “for purposes of enabling him to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child” (Sec. Log in to view more of this content. Fathers who take extended paternity leave from April 2011 onwards could argue for for the same rights and benefits as women who take additional maternity leave. Use of the service is subject to our terms and conditions. The starting point is that employers are under a high obligation to protect employees who are pregnant or on maternity leave under the Equality Act 2010. He claimed he should receive 100% of pay during his APL to achieve parity with his female colleagues on maternity leave. Each state's laws differ in the amount of paternity leave they offer and how much is paid. … Kate Palmer, head of advisory at law firm Peninsular, said: “This ruling will be concerning for many employers who provide enhanced maternity pay to female employees under family-friendly policies. Employers face considerable difficulties in situations which require using redundancy scoring to choose between a man and a woman on maternity leave. Issue: Equality of treatment on shared parental pay. The ECJ also stated that Member States are not precluded from introducing regulations which are more favourable to commissioning mothers who have had babies through a surrogacy arrangement. In the case Mr M Ali v Capita Customer Management, Madasar Ali joined Capita Customer Management via a transfer of undertaking (protection of employment) regulation (TUPE) transfer from Telefonica in 2013. Employees can take a reasonable amount of unpaid time off work to deal with family emergencies. The Employment Appeal Tribunal found in favour of the employer and the discrimination claims failed. The claimant’s wife returned to work and he took just four months off to care for his son. Research has shown that men who help in caring for children after birth go on to divide family responsibilities more evenly between parents later in life; their children are more likely to have improved health. As the dismissal was some months after the end of the protected period this claim failed as well. 6776955. However it appears that a pregnancy-related illness can be the subject of dismissal procedures once the protected period comes to an end. In any event to discriminate against someone because of their association with a pregnant woman is bad practice, even if it not clearly covered by the law. Explore thousands of up-to-date resources that will help you increase your productivity, build your confidence in HR decisions and deliver on your business strategies. UKEAT/0544/09Issue: Redundancy – maternity leave. In surrogacy cases the situation is difficult as the mothering role is shared between two women who need the protection of the law at the times relevant to them: The Advocate General gave an opinion which was followed by an ECJ judgment. The materials and information included in the XpertHR service are provided for reference purposes only. Employers potentially will face the risk of a claim of sex discrimination from either employee. Confusingly for employers on the other hand it appears that claims for discrimination related maternity and pregnancy are meant to be completely covered just by sections 17 and 18 of the Act. The employee brought a claim of pregnancy associative discrimination under the Sex Discrimination Act 1975 Section 3A which provides protection against discrimination during a woman’s pregnancy and maternity leave.