Shared parental leave: door opened to indirect sex discrimination claims?

Hextall v Chief Constable of Leicestershire Police

While men on shared parental leave cannot directly compare themselves with women on maternity leave, enhancing maternity pay but not shared parental pay may give rise to an indirect discrimination claim.

Background

When statutory shared parental leave (SPL) was introduced in April 2015, the government was adamant that fathers (and other partners, including same-sex partners) would not be able to claim the privileges women receive in connection with pregnancy or childbirth, including enhanced maternity pay.

Mr Hextall, a police officer, took SPL paid at the statutory rate while his wife continued to run her own business. He said that had he been a female police constable on maternity leave, he would have been entitled to be paid full salary. The employment tribunal (No.2601223/2015) decided that it was not discriminatory (either direct or indirect) to offer enhanced maternity pay but only statutory shared parental pay on the basis that there was no valid comparison between a man on shared parental leave and a woman on maternity leave; the correct comparator being a woman on shared parental leave. Mr Hextall appealed.

Meanwhile, the EAT, in Capita Customer Management v Ali, reversing the tribunal’s decision, has confirmed that it is not direct sex discrimination for an employer to make different payments for maternity leave and for shared parental leave. This is because the two types of leave are not comparable – one is mainly provided for the health and safety of a mother, the other is purely for childcare reasons.

EAT decision

Mr Hextall didn’t challenge the tribunal’s finding on direct sex discrimination but did challenge its findings on indirect sex discrimination.

The EAT held that the tribunal was wrong in its analysis of his claim and took the view that an employer enhancing maternity pay but paying only statutory rate on SPL is potentially applying an indirectly discriminatory practice that puts men at a disadvantage. Unlike new mothers who can choose to opt for SPL or stay on maternity leave and receive enhanced maternity pay, men only have the option to receive the flat rate.

The EAT remitted the issue of indirect discrimination for reconsideration. At this stage, the tribunal will re-consider this issue and also whether the practice, if discriminatory, is capable of justification.

The difference with indirect discrimination is that the employer’s pay policy can be objectively justified, which is not possible with direct discrimination. For example, in Shuter v Ford Motor Company (No. 3203504/2013) a tribunal accepted that the employer’s policy of paying full pay to women on maternity leave in order to recruit and retain them in a male-dominated workforce was a valid justification.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0139_17_0105.html

Comment

This decision makes it clear that any organisation which provides enhanced maternity pay and statutory shared parental leave/pay should now review their rationale for doing so and identify the objective justification(s) for this approach. Evidence of that rationale and justification should be kept in case of future challenges to the business’ approach. 

A successful indirect discrimination claim in such circumstances will depend on the pool for comparison and the nature of any objective justification argument. The EAT in Capita v Ali, outlined the importance of the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. It seems likely that such arguments will be raised at the tribunal in this case with regard to justification.