A male police constable who argued that only being able to take Shared Parental Leave (SPL) at the statutory rate of pay was indirectly discriminatory has won part of his appeal.
The Employment Appeal Tribunal found that the employment tribunal’s (ET) reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim was wrong, it also found that it had failed to base its decision on the impact of the leave policy.
In the case, Hextall v Chief Constable Leicester Police, Hextall is a serving police constable in the Roads Armed Policing Team at Leicester Police. On 29 April 2015 his second child was born. He took SPL from 1 June to 6 September 2015 and was paid at the statutory rate of £139.58 per week for that period. Had Hextall been a female constable on maternity leave, he would have been entitled to his full salary for the period over which he took SPL.
Hextall claimed indirect sex discrimination in that the only option for men taking leave after the birth of their child is SPL at the statutory rate of pay, whereas women have the option of taking maternity leave on full pay.
In her summary, the Honourable Mrs Justice Slade, 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 (PCP) 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 SPL at the statutory rate of pay whereas mothers have the option of maternity leave at full pay. Appeal allowed. Claim of indirect sex discrimination remitted for rehearing to a differently constituted ET,” said Justice Slade.
Working Families Chief Executive, Sarah Jackson, explained that the judgment suggests that enhancing maternity pay, but not SPL may give rise to an indirect discrimination claim by fathers. Primarily this is because they do not have the same choice as mothers, who can choose whether to remain on higher rates of maternity pay or opt into SPL.
“For employers, the question of indirect discrimination remains unresolved and we await a further tribunal decision for greater clarity,” said Jackson. “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 SPL, making it a more realistic option for more families.”
This case follows on from last month’s decision in Capita Customer Management Limited v Ali which found that there were different purposes for maternity leave and SPL.
