It is not direct sex discrimination to offer men on shared parental leave statutory pay while at the same time offering enhanced maternity pay, the Employment Appeal Tribunal ruled today.
Shared parental leave and pay
However, a claim of indirect sex discrimination that was dismissed by the first employment tribunal can be heard again – meaning the question of indirect discrimination in these instances remains unresolved.
In the case of Hextall v Chief Constable of Leicestershire Police, a male worker claimed that his employer had discriminated against him because of his sex as he was only entitled to receive statutory shared parental pay, when the employer paid enhanced maternity pay.
The Hextall decision follows the recent Ali v Capita judgement, which considered the case of a male worker whose wife had postnatal depression so he returned to work, yet was denied the benefit of full-pay that would have been granted to a mother returning to work.
Although an employment tribunal initially found that it was direct sex discrimination for Mr Ali to only be allowed to take two weeks’ leave on full pay (compared with 14 weeks’ enhanced for maternity leave), the EAT held that Mr Ali was not discriminated against.
In this case, the judge found that the initial tribunal had failed to consider the purpose of paid maternity leave, commenting that one of the key purposes of maternity leave is to ensure the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth”.
In today’s Hextall appeal, Mrs Judge Slade ruled that the initial tribunal had erred in applying a direct discrimination comparator (as in a woman on maternity leave) to an indirect discrimination claim, so the latter will now be heard by an employment tribunal at a future date.
She commented: “It is the resultant disadvantage which must be considered in deciding a claim of indirect discrimination.
“The disadvantage in this case was that the only option for men wishing to take leave after the birth of their child was to take SPL at the statutory rate. However, women wishing to take such leave had the possibility of taking maternity leave at full pay.”
Charity Working Families intervened on both the Ali and the Hextall cases. Chief executive Sarah Jackson said of today’s decision:
“Today’s judgment has suggested that enhancing maternity pay, but not shared parental pay, may give rise to an indirect discrimination claim by fathers (because they do not have the choice that mothers have – to remain on higher rates of maternity pay or opt into shared parental pay).
“For employers, the question of indirect discrimination remains unresolved and we await a further tribunal decision for greater clarity.
“Nonetheless employers should carefully consider the aims and benefits of enhancing one sort of pay and not the other. We’d encourage employers that can afford to do so to go beyond the minimum pay for shared parental leave, making it a more realistic option for more families.”
Working Families is calling for “a properly paid, standalone period of extended paternity leave for fathers, enabling them to bond with their child in the first year”, which it claims would help lead to a culture change in business around parents sharing childcare responsibilities.
“The door to indirect discrimination claims has been reopened by this case,” said Anthony Fincham, an employment partner with law firm CMS. “Where an employer pays enhanced maternity pay but fails to pay enhanced shared parental pay, it would need to find an objective justification other than cost for this approach.
“We can expect to see further claims and the only safe course would be to adopt a consistent approach in enhancing the different benefits.”