Response to Employment Appeal Tribunal (Hextall v Chief Constable Leicester Police)
Published: 1 May 2018
Responding to today’s decision from the Employment Appeal Tribunal (Hextall v Chief Constable Leicester Police), Working Families Chief Executive, Sarah Jackson said:
“Today’s decision does not alter the recent Ali v Capita judgment that men on Shared Parental Leave cannot directly compare themselves with women on maternity leave. We intervened in this case, and the Ali v Capita case, to ensure that the very special protections afforded women on maternity leave continue.
“However, 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 continues to call for a properly paid, standalone period of extended paternity leave for fathers, enabling them to bond with their child in the first year and help kick start culture change around who works and who cares.”
Notes to Editors
Today’s decision was not a straightforward case of direct discrimination (as in Ali v Capita last month). The case examined whether enhancing maternity pay but not shared parental pay could be indirect discrimination. If so, employers may be able to justify it as a proportionate means of meeting a legitimate aim (for instance to encourage retention rates among women returning from maternity leave).
The EAT decided that the first instance tribunal was wrong in its analysis that men on Shared Parental Leave (SPL) could never compare themselves to women on maternity leave. It considered how the law had been applied and found the original Employment Tribunal (ET) had erred in the process – and the decision has been remitted to a new ET to reconsider Mr. Hextall’s claim.
The EAT took the view that an employer enhancing maternity pay but paying only statutory rate on SPL is potentially applying an indirectly discriminatory practice that puts men at a disadvantage: unlike new mothers who can choose to opt for SPL or stay on maternity leave and receive enhanced maternity pay, men only have the option to receive the flat rate. But the decision made it clear that this is not a straightforward comparison exercise and is different altogether from the comparison you use in a direct discrimination claim (men on SPL are treated differently from women on maternity leave). The correct comparators will depend on individual circumstances.
The EAT continued to say that the different purposes of Maternity Leave and SPL may have to be considered. In the recent case of Ali v Capita, the EAT had said that the primary purpose of the first 14 weeks of the maternity leave is about the health and recovery of the new mother and that Mr. Ali’s circumstances on SPL were therefore not comparable. But the judge also indicated that the purpose of maternity leave could at some point change from biological recovery from childbirth and special bonding period between mother and child, to childcare.