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Guest blog: Shared parental leave - indirect discrimination

Hextall v Chief Constable of Leicestershire Police

The Employment Appeals Tribunal (EAT) has opened up the possibility for indirect discrimination claims against employers who enhance maternity pay but only pay the statutory rate for shared parental leave.

The option by employees to take advantage of shared parental leave allows mothers, fathers and adopters to split their time taken off work after the birth or adoption of a child. Shared parental leave is paid at a statutory rate (under the Children and Families Act 2014) for a period of time depending on any unexpired maternity leave and pay.

Mr Hextall, a police constable at Leicestershire Police who took shared parental leave following the birth of his child, claimed that the rate of pay of his shared parental leave should have been the same rate as that of a woman on enhanced maternity pay. The Leicestershire Police Force has a Maternity Leave and Pay Policy in place which provides that women taking ordinary maternity leave are entitled to full pay for a period of 18 weeks. Mr Hextall was only entitled to the statutory pay for shared parental leave.

The Employment Tribunal (ET) dismissed his claims of direct and indirect sex discrimination and of equal pay in a Judgment dated 24 August 2016. The ET came to the same conclusion in respect of direct discrimination in the similar case Mr Ali v Capita Customer Management Ltd. Mr Hextall later appealed the dismissal of the claim of indirect sex discrimination.

The EAT set aside the dismissal of the claim of indirect sex discrimination on the basis that the ET had erred in the application of the test for indirect discrimination. The EAT found that the ET had made an error in concluding that Mr Hextall was not at a disadvantage because the rate of shared parental leave is the same for both men and women. The EAT commented that fathers did not have the option to take the advantage of maternity leave and consequently the benefits of enhanced maternity pay.

A different ET will now reconsider this aspect of the claim. It remains to be seen whether the EAT will find this difference in policy to be discriminatory but employers must pay attention to the outcome of this case and consider enhancing shared parental pay in line with enhanced maternity pay in order to avoid potential claims for indirect discrimination.

For more information, please contact Millie Kempley or contact our employment team on 0345 070 6000.

Posted by Amy McCluskey on 25 July 2018