The Employment Appeal Tribunal (EAT) has ruled that a police constable was subject to indirect sex discrimination, only being able to take shared parental leave at the statutory rate of pay, whereas female constables have the option of taking enhanced maternity leave at full pay.
In Hextall v Chief Constable Leicestershire Police, Hextall is a police constable with the Roads Armed Policing Team. His second child was born on 29 April 2015 and he took shared parental leave from 1 June to 6 September 2015 at a rate of £139.58 a week. Hextall argued that, had he been a female constable taking Leicestershire Police’s enhanced maternity leave benefit, he would have been entitled to receive his full salary for the duration.
Leicestershire Police’s maternity leave and pay policy enables female staff, who are entitled to and are taking the statutory 52 weeks of ordinary maternity leave and additional maternity leave, to also receive an occupational maternity pay benefit. This allows eligible female officers who have the required amount of continuous service to receive 18 weeks of maternity leave on full pay. Although Hextall’s employment contract includes the right to enhanced maternity pay, he is unable to take it due to his gender.
The Employment Tribunal (ET) dismissed Hextall’s claims of direct and indirect sex discrimination and for equal pay in August 2016. Hextall appealed the decision regarding indirect sex discrimination, bringing the case to the EAT in January 2018. The judgement was handed down on 1 May 2018.
The employment judge allowed the appeal, analysing how the criteria for indirect sex discrimination is tested in order to demonstrate a comparative disadvantage. The disadvantage in this case was shared parental leave being paid at a lesser rate than maternity leave, not whether paying only the statutory rate of pay for shared parental leave disadvantaged men, as the ET thought.
The case is to be remitted for rehearing to a differently constituted ET.
The Honourable Mrs Justice Slade, who ruled over the proceedings, said: “The ET erred in adopting their reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim. The identifying of a pool for testing disparate impact of a [provision criterion or practice] on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim.
“Further, the ET erred in failing to base their decision on the disparate impact relied upon: fathers have no choice but to take [shared parental leave] at the statutory rate of pay whereas mothers have the option of [maternity leave] at full pay.”
Anthony Fincham, employment partner at CMS, commented: “The door to indirect discrimination claims has been reopened by this case. Where an employer pays enhanced maternity pay but fails to pay enhanced shared parental pay, it would need to find an objective justification other than cost for this approach. We can expect to see further claims and the only safe course would be to adopt a consistent approach in enhancing the different benefits.”
Sarah Jackson, chief executive officer at Working Families, added: “[This] decision does not alter the recent Ali v Capita judgment that men on shared parental leave cannot directly compare themselves with women on maternity leave. We intervened in this case, and the Ali v Capita case, to ensure that the very special protections afforded women on maternity leave continue.
“However, [this] judgment has suggested that enhancing maternity pay, but not shared parental pay, may give rise to an indirect discrimination claim by fathers because they do not have the choice that mothers have to remain on higher rates of maternity pay or opt into shared parental pay.
“For employers, the question of indirect discrimination remains unresolved and we await a further tribunal decision for greater clarity. Nonetheless employers should carefully consider the aims and benefits of enhancing one sort of pay and not the other. We’d encourage employers that can afford to do so to go beyond the minimum pay for shared parental leave, making it a more realistic option for more families.”