The claimant, a serving police constable, took Shared Parental Leave (SPL) for just over 3 months in 2015 after his wife gave birth to their second son. Had he been a female police constable on maternity leave, he would have been entitled to be paid his full salary for the period over which he took SPL.

The claimant's case, in a nutshell, was that he was unlawfully discriminated against as a male because the rate of enhanced maternity pay was higher than the rate of SPL pay. The EAT analysed how the criteria for indirect sex discrimination was tested in order to reveal a comparative disadvantage. In this case that disadvantage was SPL being paid at a lesser rate than maternity leave, and not whether paying only the statutory rate of pay for shared parental leave disadvantaged men.

The EAT noted that fathers have no choice but to take SPL at the statutory rate of pay whereas mothers have the option of maternity leave at full pay. The appeal was allowed and remitted to a new employment tribunal to examine whether the practice, if found to be discriminatory, can be justified.

Practical Lessons

At first glance, it appears that any employer paying enhanced maternity pay but failing to pay enhanced SPL needs to find an objective justification for their approach. Whilst awaiting the decision in the remitted case, the safest option for employers may be to adopt a consistent approach and offer enhanced SPL and maternity pay.

This decision raises obvious comparisons with the recent EAT decision of Capita Customer Management Ltd v Mr M Ali, in which it was held that SPL taken by men is not comparable to women on maternity leave for direct discrimination purposes. Note that case concerned direct discrimination rather than indirect discrimination. Employers may of, course, attempt to justify indirectly discriminatory policies based on aims specific to the workforce. It could be argued, for example, that extra pay reflects the desire to retain more women or even to compensate women for disadvantages arising from maternity, such as the difficulty in attaining more senior positions. It will be worth keeping an eye on this case to see what arguments are made and whether the tribunal accepts them.
https://assets.publishing.service.gov.uk/media/5ae84c97ed915d42f7c6bc9d/Mr_A_Hextall_v_1__Chief_Constable_of_Leicestershire_Police_2__Working_Families__Intervenor__UKEAT_0139_17_DA.pdf