hello@kilgannonlaw.co.uk

Our team is ready to answer any questions

0800 915 7777

Book your consultation today

Shared parental pay and sex discrimination: another decision

The Employment Appeal Tribunal (EAT) hasIn Hextall v Chief Constable of Leicestershire Police the EAT ruled that an employment tribunal had made a number of errors when it dismissed claims of direct and indirect sex discrimination brought by a police officer. The case was remitted to a new employment tribunal to consider the claim of indirect sex discrimination afresh.


Previous case

The case of Ali concerned a claim of direct sex discrimination brought by a male employee who sought to compare his situation of wanting to take shared parental leave to care for his newborn daughter with a female employee on maternity leave. He argued that it was direct sex discrimination for his employer to pay him only statutory pay while women received enhanced pay.

His claim was dismissed by an employment tribunal and this was upheld by the EAT. The EAT considered that the purpose of shared parental leave (caring for a child) was not comparable to the purpose of maternity leave which was primarily for the health of the mother (although she would obviously also care for her child during that time). See our recent update for more details on this case.


The latest case

In the Hextall case the police officer claimed that a discrepancy between payments made to men on SPL and women on maternity leave amounted to both direct and indirect sex discrimination which was unlawful.


Like in Ali, the tribunal rejected the argument that women on maternity leave were valid comparators for men on SPL for the purposes of the direct discrimination claim; the correct comparator was a woman on SPL. This element of the decision was not challenged on appeal. However, the tribunal then applied that finding in rejecting the indirect sex discrimination claim and the EAT ruled this was an error.

The EAT went on to find that the tribunal had also erred by failing to clearly identify the “particular disadvantage” to which men were put (a vital element of any indirect discrimination claim). Unless the comparative disadvantage was precisely identified, no conclusion on whether men seeking leave to care for a newborn baby were put at a particular disadvantage compared with women in similar circumstances could be reached.


Finally, the tribunal had erred by holding that paying only the statutory rate for those taking SPL did not put men at a particular disadvantage, on the basis that men and women on SPL were entitled to payment of the same amount. Indirect discrimination cases, by their very nature, consider an apparently neutral criteria that applies to everyone and it is no defence in such claims to say that the rule applies equally to men and women.


Comment

It will be very interesting to see what the employment tribunal now decides in this case. Employers are understandably confused about their legal obligations to fathers taking shared parental leave and it is hoped that a definitive decision from the EAT (or higher court) will bring some much needed certainty to this area.


For the time being at least, the status quo is preserved. Thanks to the decision in Ali employers can rest assured that they will not be directly discriminating on the basis of sex if they fail to enhance pay for those on SPL . As regards a possible indirect sex discrimination claim, even if (and it’s a big one) the tribunal rules the pay policy was capable of being sex discriminatory, employers always have the option of defending such claims by arguing such terms were objectively justified – in short that there was a good business reason for them.



a man in a wheelchair is sitting at a desk with a woman standing next to him .
By Marianne Wright 20 Feb, 2024
In the modern workplace, fostering a culture of inclusivity and ensuring equal treatment for all employees is a crucial aspect of employment law. Discrimination based on disabilities (which can include mental health conditions) is strictly prohibited in the United Kingdom. This article explores the legal framework in UK employment law that safeguards employees against discrimination and highlights the consequences faced by employers who fail to uphold these important principles.
a man is sitting at a desk in a dark room using a laptop computer. GDPR
By Emily Kidd 06 Feb, 2024
In an era of heightened data protection awareness and stringent regulations like the General Data Protection Regulation (GDPR), employees play a critical role in safeguarding personal data. This article explores the legal consequences that employees may face in the United Kingdom when implicated in data protection breaches at the workplace.
person holding up a mental health book and in a discussion
By Yeing-Lang Chong 22 Jan, 2024
In recognition of the importance of employee well-being, employers in the UK are increasingly implementing well-being initiatives to support the mental health and overall well-being of their workforce. These initiatives, which can include employee assistance programs (EAPs) and wellness programs, aim to provide support, resources, and interventions that enhance employee well-being. This article explores the legal framework surrounding well-being initiatives in UK employment law and highlights the benefits and considerations for employers when implementing such programs.
Female employee getting harassed at work by a colleague
By Marianne Wright 19 Jan, 2024
Creating a safe and respectful work environment is a fundamental aspect of UK employment law. This article explores the legal obligations placed on employers to address workplace harassment, highlighting the measures they should take to promote a culture of respect and protect their employees' mental health.
By Emily Kidd 04 Dec, 2023
In recent years, there has been increasing recognition of the importance of mental health in the workplace. Employment law acknowledges the sensitive nature of mental health disclosures and places obligations on employers to handle such disclosures with care, confidentiality, and without discrimination. This article explores the legal framework surrounding mental health disclosures in the workplace, emphasising the responsibilities employers have in safeguarding employee privacy and ensuring a supportive and inclusive environment.
By Emily Kidd 04 Dec, 2023
The General Data Protection Regulation (GDPR) revolutionised the way organisations handle personal data, and for Human Resources (HR) departments in the United Kingdom, compliance is paramount. This article provides a comprehensive exploration of best practices for HR to safeguard employee data and ensure GDPR compliance in the workplace.
Whistleblowing, Sexual Harassment and Gagging Clauses image
By Louise Maynard 09 Nov, 2023
On 23 October 2024, the new, positive duty to prevent sexual harassment in the workplace comes into force. The extent to which a non-disclosure agreement can prevent a worker disclosing sexual harassment will be under the limelight. In the employment context, the most common area for non-disclosure agreements is settlement agreements, under which an employee agrees to settle all claims in return for a compensation payment often where the employer has been unable to resolve a grievance including unlawful discrimination or sexual harassment.
Positive duty to prevent sexual harassment in the workplace
By Louise Maynard 03 Nov, 2023
On 26 October 2023, Parliament passed new legislation to amend the Equality Act 2010 to place a duty on employers to take reasonable steps to prevent sexual harassment of employees and workers during the course of their employment. The new duty comes into force on 26 October 2024.
What is a Deposit order in the Employment Tribunal?
By Louise Maynard 28 Aug, 2023
Employment tribunals are often reluctant to strike out cases at an early stage unless there is a compelling reason to do so. An alternative option for the Tribunal is to make a deposit order.
By Louise Maynard 28 Aug, 2023
If you have been named in an Employment Tribunal claim, there are a few ways that you can try to reduce the value of the claim against you. First, you can offer a claimant alternative employment within your organisation. This could be at a different location or on different terms and conditions, but it would still allow them to continue working for you. Compensation is based on the financial losses a person suffers, so the sooner you can find a ways to stop their loss of earnings, the lower the value of the claim could be, especially if they are claiming reinstatement or reengagement. Of course, you may not want to re-employ someone who is suing you!
More Posts
Share by: