Last month, we reported on the case of Capita v Ali, one of two cases on shared parental leave being heard by the Employment Appeal Tribunal (EAT). In Capita v Ali, the EAT held that it was not direct sex discrimination to pay enhanced maternity pay to mothers on maternity leave, whilst only offering statutory shared parental leave pay to fathers taking shared parental leave. This was because the situation of a father taking shared parental leave was not comparable to that of a mother taking maternity leave. The correct comparator for Mr Ali was a woman taking shared parental leave (who would also have received statutory shared parental pay).
The decision in the other case, Hextall v Chief Constable of Leicestershire Police, has now also been released.
Mr Hextall, a police officer, had brought a claim in the Employment Tribunal on the basis that paying statutory shared parental pay to him when paying full pay to those on maternity leave amounted to direct and indirect sex discrimination. To succeed in the indirect discrimination claim, he had to show that his employer had applied a “provision, criterion or practice” (in this case, their policy of paying only the statutory rate of shared parental pay) to everyone, but that it put those with a particular protected characteristic (in this case, men) at a particular disadvantage, and the employer couldn’t justify it as a proportionate means of achieving a legitimate aim.
The Tribunal based their reasons for rejecting Mr Hextall’s claim for indirect discrimination on their reasons for rejecting the direct discrimination claim, i.e. women on maternity leave were not the correct comparator for men on shared parental leave.
The EAT held that the Tribunal had erred in reaching its decision on this basis, and said that the relevant pool for comparison would be “those police officers with present or future interest in taking leave to care for their newborn child.” The Tribunal had failed to consider the disadvantage i.e. that men had no choice other than shared parental leave, as opposed to mothers who have the choice of maternity leave or shared parental leave.
The case was remitted to the Employment Tribunal to be reheard.
Paying enhanced maternity pay whilst only paying statutory shared parental pay could amount to indirect discrimination, unless the employer can objectively justify it. As we have said before, the safest approach for employers who pay enhanced maternity pay, is to also pay shared parental pay at the enhanced rate. Alternatively, employers could pay the statutory minimum pay for each type of leave regardless of who is taking it – but changing existing arrangements can be difficult, so it is always best to take advice.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).