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Shared parental leave discrimintation

BY Kirstie Beattie
Employment Law & HR

Following on from the recent Employment Appeal Tribunal decision in Ali v Capita Customer Management, is the EAT decision in Hextall v Chief Constable of Leicestershire Police. The case has factually similar circumstances to that in Ali, where a male employee has claimed direct and indirect sex discrimination. In this case, the claimant was a male police officer that complained of the practice of paying female employees on maternity leave 18 weeks full pay, and only paying men on shared parental leave (SPL) statutory shared parental pay.

Both of Mr Hextall’s claims were dismissed by the Employment Tribunal (ET). Direct discrimination was dismissed on the same ground as that in Ali v Capita Customer Management where the notion that a woman on maternity leave was a valid comparator for a man on SPL was rejected. They confirmed the correct comparator in this instance would be a woman on SPL.  In relation to indirect discrimination the tribunal applied the same reasoning to reject this claim.

The indirect discrimination was challenged on appeal. The EAT said that the ET had erred in law in applying this finding. The ET had wrongly applied the test for direct discrimination to the claim for indirect discrimination. They said that the correct approach for indirect discrimination was to identify the logical appropriate pool for comparison, here this was police officers with an interest, presently or in the future, who want to take leave for their child. The EAT made clear that identifying the pool for testing the impact of a Provision, Criterion or Practice (PCP) on men and women for the purposes of an indirect discrimination claim was different from deciding that of a direct discrimination claim.

The EAT also found that the ET failed to identify the particular disadvantage. Unless the comparative disadvantage relied upon was identified with precision the ET were not in a position to reach a conclusion on whether men seeking leave to care for their newborn are put a particular disadvantage compared with women in comparable circumstances.

Lastly the EAT also confirmed that the tribunal had erred in finding that the PCP did not put men at a particular disadvantage because men and women on SPL were paid the same amount. Neutral criteria and rules should apply to everyone equally, so it was not an answer to say that the rule applies equally.

As the ET failed to properly identify and decide all the elements necessary to establish the claim of indirect discrimination the EAT allowed the appeal and remitted the case to a fresh ET. For those who campaign for equal treatment there is still that glimmer of hope. Once the fresh ET has delivered their decision we will update you on the implications of this. In the meantime if you have any questions around the recent decisions on SPL and what they could mean for your business please get in touch with your dedicated employment solicitor.

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