The Employment Appeal Tribunal (EAT) has allowed an appeal in a case brought by a police officer about the practice of paying employees on shared parental leave (SPL) only statutory shared parental pay, while female employees on maternity leave receive full pay for 18 weeks. The facts of the case were similar to the recently reported Capita Customer Management Ltd v Ali but, this appeal concerned a claim for indirect sex discrimination, not direct discrimination, as in Ali.

In 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.

 

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