Hextall v CC of Leicestershire Police - Shared parental pay and indirect discrimination

Employment Appeal Tribunal – May 2018

Was the payment of statutory shared parental pay to men and enhanced maternity pay to women an act of indirect discrimination?

Facts

The claimant in this case took a period of shared parental leave following the birth of his child lasting from 1 June 2015 - 6 September 2015.

The employer paid the claimant the statutory rate of shared parental pay during his leave. However, the employer’s maternity leave and pay policy grants eligible employees an enhanced occupational rate of maternity pay, which includes 18 weeks of full pay.

Upon returning to work, the claimant argued that if he had been a female and had chosen to take the employer's enhanced maternity leave benefit he would been paid his full salary during leave. However, he was prevented from doing so and made a claim for direct and indirect sex discrimination.

ET

The claims of both direct and indirect sex discrimination were dismissed by the Employment Tribunal.

In forming their decision, the ET ruled the claimant could not compare himself with a woman on maternity leave due to the obvious material differences between the two. The ET cited that a woman is afforded special protections to ensure the health and wellbeing of both herself and the child following the birth and it would be incorrect for the claimant to compare himself to this situation.

The ET asserted that the correct comparator in this situation would be a female same sex partner who chose to take shared parental leave after her partner had given birth. When doing so the ET dismissed the claim for indirect discrimination because in this instance the provision criterion or practice (PCP), which was the rate statutory paternity pay, applied to both men and women equally.

The claimant appealed the decision on indirect sex discrimination.

EAT

The EAT ruled the original ET erred in applying the same comparator test to this claim of indirect discrimination claim as would be applied in a direct discrimination claim.

Instead what the ET should have considered is whether a male employee seeking a period of leave to care for his new born child is put at a particular disadvantage compared to a woman in comparable circumstances.

The EAT confirmed that the correct procedure to assess indirect discrimination is to use a pool of individuals to test the disparate impact of a PCP on men and women in materially indistinguishable circumstances.

The EAT also held that the ET had failed to identify the disadvantage that men felt in this circumstance. A disadvantage must be demonstrated and without this, the ET was unable to decide whether the PCP did in fact create a disadvantageous situation for men.

The ET was also wrong, the EAT held, when they said that the PCP did not put men at a disadvantage because they were treated the same as women. The very nature of an indirect discrimination claim is equality with which the PCP is applied and so this alone does not factor in the analysis of a disadvantage.

However, the EAT did not have sufficient facts to make a determination so, whilst overturning the ET decision, remitted the case back to a newly formed Employment Tribunal to decide whether indirect discrimination occured.

Note for employers

Employers offering enhanced rates of maternity pay to women but not enhanced rates of shared parental pay to men should be aware that this could result in indirect discrimination. However, more clarity is needed before a definitive answer can be provided. Employers should keep in mind that indirect discrimination can be objectively justified. Employers who act in this manner may want to consider amending rates for all forms of parental leave or ensure they have sufficient objective justifications for not doing in case the ET, on hearing the case again, finds that indirect discrimination occurred.


This decision does not alter that of Capita Customer Management v Ali, in which it was held that the practice of paying statutory shared parental pay to men and enhanced maternity pay to women was not direct sex discrimination.

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