Hextall v 1) Chief Constable of Leicester Police 2) Working Families (Intervenor) UKEAT/0139/17/DA

This is the second recent EAT case on whether employers must pay the same to men on shared parental leave as to women on maternity leave. (The first case, Capita Customer Management Ltd v Ali, held that it was not direct discrimination to pay less to men on shared parental leave, and was reported in April 2018's Law at Work.

In this case, the Claimant brought claims of both direct and indirect sex discrimination, and was unsuccessful in both. He appealed the finding that he had not been subjected to indirect sex discrimination.

Direct sex discrimination occurs where, because of sex, a person (A) treats another (B) less favourably than A treats or would treat others. Indirect sex discrimination takes place where a person (A) applies a provision, criterion or practice (PCP) generally to both men and women, but it puts or would put B and others of the same sex as B at a particular disadvantage compared to those who are of the opposite sex, and the reason for the PCP cannot be objectively justified.

In determining whether a man has been discriminated against because of sex, no account is taken of special treatment afforded to women in connection with pregnancy or childbirth. A man cannot claim that he has suffered sex discrimination because he has not been accorded the same special treatment. However, pregnant employees and those on maternity leave should only be treated more favourably than others to the extent that this is reasonably necessary to remove the disadvantages they face because of their condition.

The case

The Claimant took shared parental leave from 1 June until 6 September 2015, and was paid statutory shared parental pay (then £139.58 per week). The Respondent's contractual policy was that women on maternity leave and primary carers (of whatever sex) on adoption leave are entitled to full pay for 18 weeks. Had the Claimant been a female police officer on maternity leave, therefore, he would have received his full pay for the entire period.

At the Employment Tribunal, the parties agreed that the relevant comparator was a female police officer who took maternity leave and was paid enhanced maternity pay equivalent to full pay. This comparator would also have the right to take shared parental leave, but in practice she was unlikely to do so (particularly in the period in which she would be entitled to full pay whilst on maternity leave).

The Employment Tribunal rejected the claims of both direct and indirect discrimination. While the Claimant and the identified comparator would be treated differently, this was because there were material differences in circumstances. Under EU law, the first 14 weeks of maternity leave is recognised as being a period to take measures with regard to the safety and health of pregnant workers, those who have recently given birth, or are breastfeeding.

The Employment Tribunal also found that the PCP of paying only statutory shared parental pay to employees who took shared parental leave did not put men at a particular disadvantage to women, since both sexes would receive the same pay while on shared parental leave. There was no causal link between paying statutory shared parental pay and enhanced maternity pay. The Employment Tribunal held that the Claimant's case was not really about men being disadvantaged by any PCP connected to shared parental leave, but that only women were able to receive enhanced maternity leave.

The Employment Appeals Tribunal (EAT) upheld the Claimant's appeal on indirect discrimination.

Maternity leave and shared parental leave may have different purposes. Certainly initially, maternity leave is a special period for recovery from childbirth and for bonding between mother and child, whereas shared parental leave is in order to care for the child.

The EAT held that an employer which chooses to pay an enhanced rate of maternity pay to women on maternity leave, but only statutory shared parental leave is applying a practice which may put men at a disadvantage. Men have no choice and can receive only the flat rate, whereas a mother is able to decide between staying on maternity leave and receiving the higher rate, or opting in to the shared parental leave scheme.

The tribunal had been wrong to say that men on shared parental leave could not compare themselves to women on maternity leave. The relevant pool for testing whether or not men suffered a disadvantage over women would be all those police offices with a present or future interest in taking leave to care for their new baby.

The tribunal also failed to clearly identify the particular disadvantage to which men were put, and without this it could not conclude whether or not men seeking leave to look after their new baby were at a particular disadvantage compared to women in a similar position.

The Respondent clearly did apply a neutral rule, paying only statutory pay to those on shared parental leave regardless of sex. That must be the case in an indirect discrimination case (or it would be direct discrimination). Just because the rule is applied to everyone, does not mean it cannot be indirect discrimination.

The case has been remitted to a fresh Employment Tribunal to reconsider the claim.

What to take away

The decision does not alter the recent EAT decision in Capita Customer Management v Ali that is not direct discrimination to pay men on shared parental leave less than women on maternity leave (at least, for less than 26 weeks – the EAT in Ali did note that the purpose of the leave must change to child care at some point, and suggested that a case when the baby was over six months might be decided differently).

However, the case does open the door once again to the possibility that it may be indirectly discriminatory to do so (because men do not have the choice a mother has to either remain on maternity leave, with higher rates of pay, or to opt into the shared parental leave system with less money available but greater flexibility).

For employers, who might last month have thought that the position was clear, it means that there is an unresolved risk that paying different rates to those on shared parental leave than those on maternity leave may still be unlawful.

Working Families, the campaigning organisation which intervened in the case, has continued to call for a standalone period of extended paternity leave for fathers.