An employment tribunal has ruled that a male employee was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay. Surrogacy laws are very complicated for employers to understand. However the unfair dismissal claim succeeded as the employer had been found not to have followed its own policies and procedures. 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. The employer eventually conceded that its policy relating to enhanced shared parental leave was indirectly discriminatory. The place in which she is to be employed, and the other terms and conditions must not be substantially less favourable than those of the previous contract. Discover the power of our expert insight, trusted resources, data analysis and practical tools today. The materials and information included in the XpertHR service are provided for reference purposes only. It was abolished in April 2015 and has subsequently been replaced with shared parental leave. 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. Ali was informed that he would only be eligible for shared parental leave under the Capita policy, entitling him to statutory pay. However, during the maternity leave she was diagnosed with post-natal depression and did not return to work. ​​XA141/10Issue: Associative pregnancy discrimination​. Some employers, with a high percentage of male staff, who offer generous enhanced maternity packages to attract women may be able to objectively justify offering those enhanced maternity packages even though men are indirectly discriminated against as a result. She argued that she should have been offered one of the new jobs instead of just being given the details. Any employers who pay only the statutory rate of pay to male employees on shared parental leave (applying to parents of children due to be born or placed for adoption on or after 5 April 2015) may be able to use similar arguments to defend sex discrimination claims, although there is no guarantee. Employees must use any means to contact their employer, even if distracted by an emergency such as childbirth. 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. Employment judge Rogerson ruled in favour of the direct sex discrimination claim. Please press Ctrl/Command + D to add a bookmark manually. Employers should carefully review their maternity and paternity schemes in the light of the imminent new paternity rights in the UK. All consultants were guaranteed a job in the new call centres if they were willing to relocate. The employer did not pay her for the whole of February and March. While this was pending she was told to return to work immediately, which she was not prepared to do. He and his partner were expecting a baby imminently and because of some concerns they went to hospital on several occasions without informing the employer until after the event. A handful of states along with the nation's capital have a paid family leave policy, which is an umbrella policy that includes paternity leave, maternity leave, sick leave, etc. Pending the new UK law, best practice employers should consider offering an employee with new surrogate children maternity leave in the same way as an adoptive parent. Threaded commenting powered by interconnect/it code. Log in to view more of this content. Copyright © 2020 LexisNexis Risk Solutions Group, Access the Coronavirus Job Retention Scheme, Coronavirus Job Retention Scheme/Furlough leave, Employment tribunals and dispute resolution, Key differences in Scotland and Northern Ireland, Notice of intention to take paternity leave (birth), Entitlement to paternity leave (adoption within the UK), Notice of intention to take paternity leave (adoption within the UK), Entitlement to paternity leave (adoption from overseas), Notice of intention to take paternity leave (adoption from overseas), Statutory paternity pay during paternity leave, Time off for fathers and partners to accompany pregnant women to antenatal appointments, The right to paternity leave arises in relation to birth children, children adopted from within the UK and children adopted from overseas. This means another tribunal hearing a similar case can reach a different conclusion on whether such a pay policy is discriminatory or not. While she was on leave, the employer decided to close some of its offices (including London) and transfer work to four new call centres in Cheltenham, Burnley and Northern Ireland. However the intended (commissioning) mother does not currently have maternity rights if involved surrogacy arrangements in the UK. Were these intended mothers discriminated against under EU law by being denied maternity leave rights? Although it did not arise in this case, post-natal depression may constitute a disability leading to a disability discrimination claim especially if the employer failed to make reasonable adjustments. Registered office 1st Floor Chancery House, St Nicholas Way, Sutton, Surrey SM1 1JB, to improve your user experience. The employment tribunal identified four jobs in Cheltenham which were potentially suitable for the consultant, but she had decided that she would not relocate there. Her claim was dismissed, but she appealed claiming that the tribunal was wrong in its interpretation of Regulation 10 of the Maternity and Parental Leave Regulations 1999. This case concerned a Spanish scheme where all employed mothers were eligible for maternity leave, but employed fathers were not entitled to the leave unless the child’s mother was also an employee. These directives, the Pregnant Workers Directive and Equal Treatment Directive (Recast) do not expressly refer to surrogacy. The Employment Appeal Tribunal found in favour of the employer and the discrimination claims failed. The intended biological father is automatically recognised as the legal parent so would presumably be entitled to paternity leave if helping with caring for the child.

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