In April we reported on the case of Capita Customer Management Ltd v Ali, in which the EAT found that paying enhanced maternity pay but only statutory shared parental pay did not generally amount to direct sex discrimination. A similar claim arose in Hextall v Chief Constable of Leicestershire Police, but the employee argued that such a policy amounted to indirect sex discrimination. The EAT has returned the claim to the tribunal for reconsideration.

Mr Hextall was a police constable who took three months' shared parental leave shortly after the birth of his second child. A female police constable on maternity leave at the same time would have received her full salary as enhanced maternity pay, but Mr Hextall only received statutory shared parental pay. He argued that this amounted to indirect sex discrimination (amongst other things). The indirect discrimination claim failed before the tribunal, which found that a policy of paying men and women on shared parental leave at the statutory rate was not particularly disadvantageous to men.

The EAT upheld the claimant's appeal. The disadvantage to which the policy was said to give rise was that paying shared parental leave at a statutory rate made it more difficult for a father to choose to take shared parental leave than it was for mothers to take maternity leave, as this would be paid at a higher rate. The tribunal had not dealt with this argument, so the case was remitted to the tribunal to decide whether the policy did in fact place men at a disadvantage when compared to women in comparable circumstances. The relevant pool for comparison was all employees with a current or future interest in taking time off to care for a new born child. If the tribunal finds that the policy disadvantages men, it will presumably also have to consider arguments about justification.