Mr M Ali v Capita Customer Management Limited — 2017

The tribunal upheld the claimant’s direct sex discrimination complaint concerning pay during leave to care for his child. It accepted that, while the first two weeks after birth were materially different because of compulsory maternity leave linked to childbirth, the comparison after that period was valid. The tribunal found that a hypothetical female transferred Telefonica employee would have received full pay for a further 12 weeks, whereas the claimant, as a father seeking leave to care for his baby in circumstances involving his wife’s postnatal depression, was told he would receive only statutory pay. It held that this was less favourable treatment because of sex.

The tribunal rejected the respondent’s arguments that the comparison was invalid, that the full 14 weeks fell wholly within special treatment connected with pregnancy or childbirth, and that the claimant could not complain because he had been deterred from applying rather than having applied. It found that the caring role the claimant wished to perform after the compulsory two-week period was not exclusive to the mother and that the respondent had not properly reviewed the transferred Telefonica policy when the discrimination complaint was raised. The tribunal also dismissed the indirect sex discrimination complaint, holding that the policy relied on was gender-specific and so the issue was one of direct, not indirect, discrimination.

On victimisation, the tribunal treated the grievance of 5 April 2016 and the presentation of tribunal proceedings on 22 June 2016 as protected acts. It found that Laura Tummons victimised the claimant on 14 July 2016 by giving him an ultimatum that he would lose his BRT role if he did not return when his sick note expired, and on 27 and 28 July 2016 by misleading him about his return to that role and then giving a false reason for removing him from it. It dismissed the complaint concerning the 16 August 2016 meeting about discussing the tribunal case at work, finding no detriment. It upheld the complaint about 21 December 2016, finding that Sarah Shillito subjected the claimant to a detriment by handling a meeting about dependants’ leave in an inappropriate and more formal way without adequate explanation.