Tribunal wrong to decide that enhancing maternity pay but not shared parental pay was not indirect sex discrimination

A tribunal made a number of errors when it ruled that enhancing maternity pay but not shared parental pay was not indirect sex discrimination.  The case will now be heard by a different employment tribunal who will consider the matter afresh.  

Facts

In Hextall v Chief Constable of Leicestershire Police, a male police officer claimed that the force’s practice of paying men on shared parental leave statutory pay, when it paid women on maternity leave full pay for 18 weeks, indirectly discriminated against him on grounds of sex. He also claimed that the force had directly discriminated against him on grounds of sex.   

The employment tribunal rejected both claims.  As regards direct discrimination, it ruled that women on maternity leave were not valid comparators. The correct comparator was a woman on shared parental leave.  As she would be paid the same as him there was no direct discrimination.  It then went on to rule that the claim of indirect discrimination failed for the same reason. It ruled that when considering whether the force’s practice disadvantaged men, women on maternity leave should not be included in the comparison pool.  

The force appealed to the Employment Appeal Tribunal (EAT) in relation to indirect discrimination only.  

Decision

The EAT ruled that the tribunal’s approach was wrong.  The comparison exercise in indirect discrimination claims is different from direct discrimination claims.  In cases of indirect discrimination it is necessary to identify a pool of people affected by the practice to assess whether men are adversely affected it.The pool has to include everyone affected (both positively and negatively) by the practice.   

The EAT considered that the tribunal had also made a number of other errors in its judgment and decided that the case should be heard afresh by a new employment tribunal.  

Implications

It is still unclear whether a practice of enhancing pay for maternity leave but not shared parental leave gives rise to indirect sex discrimination. Even if it does, employers have the ability to justify the practice if they can show that it is a proportionate means of achieving a legitimate aim. Employers who do enhance pay for maternity but not shared parental leave should consider the aims and benefits of doing so. Whilst encouraging retention rates among women returning from maternity leave might justify this practice (for example, in a male-dominated workforce), this may not be the case for all employers.  Cost alone is not sufficient justification.  

The EAT recently confirmed in Capita Customer Management Ltd v Ali that enhancing pay for maternity leave but not shared parental leave does not give rise to direct sex discrimination.