Indirect Discrimination: Enhancing maternity pay but not shared parental pay
Two appeals have been heard by the Court of Appeal recently (Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management) because they covered the same point – is it sex discrimination for employers to enhance pay for women on maternity leave, but offer only the statutory rate for both men and women on shared parental leave? Indirect sex discrimination occurs when an employer has a provision, criterion, or practice (“PCP”) which applies to everybody but results in one sex (in this case men) being put at a disadvantage. Unlike direct discrimination, it is possible for an employer to justify indirect discrimination.
Mr Ali claimed his employer discriminated against him because of his sex because he was denied the opportunity to take shared parental leave on full pay. He was only allowed 2 weeks on full pay, whereas female employees could take 14 weeks’ maternity leave on full pay. At first instance, the tribunal ruled that it was direct sex discrimination, but this was overturned by the EAT who found that the tribunal had erred in comparing Mr Ali’s circumstances to those of a woman who had just given birth. At appeal, Mr Ali argued that more weight should be given to the caring responsibilities that parents have, which can be taken equally by women and men, and that if the primary purpose of maternity leave is to care for the child after the compulsory two-week period, then it is valid to compare a mother on maternity leave to a father on shared parental leave.
Mr Hextall claimed his employer discriminated against him because of his sex as he was only entitled to statutory shared parental pay, when the police force paid new mothers enhanced maternity pay. At first instance, the tribunal found he had been discriminated against, but on appeal, the EAT held that the tribunal had erred in using a direct discrimination comparator (a woman on maternity leave) in an
indirect sex discrimination claim. The case was referred back to a tribunal to be heard properly as a claim for indirect discrimination but Leicestershire Police appealed claiming the case should instead have been argued as an equal pay claim.
We await the Court of Appeal’s decision which is yet to be published.
Published: 17 May 2019