The latest case to deal with enhanced shared parental pay, Hextall v Chief Constable of Leicestershire Police, re-opens the door on indirect discrimination, although a definitive position is still awaited.
Employers can take comfort in the fact that indirect discrimination can be objectively justified. Any employer that pays enhanced maternity but does not pay enhanced shared parental pay may be able to objectively justify that decision depending upon the particular circumstances.
Hextall involved a father who was not paid enhanced pay during a three month period of shared parental leave. He argued a female police constable on maternity leave would have received full pay over the period he took shared parental leave. The Police Force provide up to 18 weeks full pay to mothers taking maternity leave (or primary adopters).
The tribunal dismissed both the indirect discrimination and the direct discrimination claims because of the comparator point, i.e. that a man taking SPP cannot compare himself with a women taking maternity leave because there is a material difference. The tribunal ruled that the correct comparator was a female same sex partner taking SPL after her partner or wife had given birth.
The tribunal dismissed the indirect discrimination claim primarily because of the comparator point, but also considered that indirect discrimination was a “non-starter” because of the provision criterion practice (PCP) point – that men were not put at a particular disadvantage when compared with women because they were paid the statutory rate of pay for shared parental leave.
They also considered whether the Police Force could objectively justify their decision. The tribunal determined that the decision had been made purely because of cost, and this was not sufficient to justify discrimination. Had the claim of indirect discrimination been made out, the Police Force would have been unable to justify its actions.
The claimant successfully appealed the tribunal’s dismissal of his indirect discrimination claim, but the EAT did not have sufficient facts before them to make a decision and the case was therefore remitted to a different tribunal. The original tribunal had been wrong in applying the comparator test in a direct discrimination claim to an indirect discrimination case. This distinction is critical as the need for a comparator often means the claim does not get over the starting line. The question that the tribunal should have assessed is whether men seeking leave to care for a newborn child are put at a particular disadvantage compared with women in comparable circumstances.
The EAT confirmed that there were three distinct steps that need to be followed with an indirect discrimination claim.
- The first step in this process is the identification of a PCP - here the PCP was “paying only the statutory rate of pay for those taking a period of shared parental leave”
- Secondly that a particular disadvantage is shared by those with the relevant characteristic. This involves a comparative exercise to decide whether the PCP put men at a particular disadvantage when compared with women in no materially different circumstances. The claimant argued that “it is more difficult for men to take the leave available to them than it is to stay at work. If a man stays at work, he receives full pay, but if he takes the available leave, he receives only the statutory rate of pay. Whereas, the overwhelming majority of women in materially the same circumstances suffer no such disadvantage, because they have a full-pay alternative available to them in the form of occupational maternity pay: making the choice to take the available leave is very much easier.”
- The third step is the identification of a pool for testing disparate impact of the application of the PCP on men and women in materially indistinguishable circumstances. This is a different exercise from the direct discrimination test. Although the EAT did note that “there may be submissions to be considered as to whether the different purposes of ML and SPL are to be taken into account in determining the relevant pool and if so how that is to be done.”
While no decision has yet been made on the facts of this case, the argument favoured by the EAT suggests that a successful indirect discrimination claim is now more likely. This will depend on the pool for comparison and the nature of any objective justification argument.
Employers who take a similar approach to the Police Force and do not replicate enhanced benefits when it comes to shared paternity leave should analyse their objective justification arguments or revisit previous considerations to assess if they could resist a legal claim. A successful direct discrimination claim is unlikely and the real risk seems to be indirect discrimination.