Employment Lawyer Comments On Judgment

The Employment Appeal Tribunal (EAT) has today ruled on the Hextall v Chief Constable of Leicestershire Police case.

The case examined whether enhancing maternity pay, but not shared parental pay, could be indirect discrimination by an organisation.

In the initial ruling, Mr Hextall was told that being denied the opportunity to take shared parental leave on full pay did not amount to either direct or indirect sex discrimination. He did not challenge the direct discrimination finding, only appealing about indirect discrimination.

The EAT has however decided that the first instance tribunal was wrong in its analysis of the claim and took the view that an employer enhancing maternity pay, but paying only statutory rate on Shared Parental Leave (SPL) is potentially applying an indirectly discriminatory practice that puts men at a disadvantage.

The decision has been remitted to a new Employment Tribunal to reconsider Mr Hextall’s claim. At this stage, the ET will re-consider this issue and also whether the practice, if discriminatory, is capable of justification.

The decision follows the recent Ali v Capita judgment that men on Shared Parental Leave cannot compare themselves with women on maternity leave for the purposes of a direct discrimination claim.

Jenny Arrowsmith, an employment partner at Irwin Mitchell who represented Capita said:

Expert Opinion

“The issue in dispute in the case of Ali v Capita was one of direct discrimination. The issue in the case of Hextall was of whether the police’s policy of enhancing maternity pay for the first 18 weeks but only paying shared parental leave at statutory rates amounted to indirect discrimination.

“Indirect discrimination occurs where a practice, criteria or provision that applies to everyone adversely impacts on a particular group. Even if this is made out, employers can attempt to justify their policy – by for example, arguing that enhancing maternity pay promotes loyalty and encourages retention. The argument here was that the rate of pay for shared parental leave is the same for both mother and father and the EAT found that it could have a disparate impact on fathers, because they (unlike mothers who can take maternity leave) have no other choice if they wish to take leave to care for their child.

“This decision therefore leaves open the possibility that an indirect discrimination claim could succeed, although the employer will be able to try and justify it. The case will go back to be determined by a new employment tribunal.

"Justification arguments may be, amongst other factors, influenced by the findings in the Ali v Capita case that there are health and wellbeing considerations for birth mothers in the early weeks of maternity. These issues were not raised in any detail by the EAT as they were not part of the appeal but would likely be issue in the ET case, when it is re-heard.”
Jenny Arrowsmith - Partner

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