HM Insights

Sex Discrimination & Shared Parental Leave

The Court of Appeal has today published its decision in relation to Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management, two cases that considered whether or not it was discriminatory for employers not to pay a man who takes shared parental leave following the birth of a child at the same rate as a woman on maternity leave. Here we take a look at the facts of the cases and the outcomes.


Hextall – Indirect Discrimination

Following the birth of his child, Mr Hextall took 14 weeks' shared parental leave. His employer only paid statutory pay to parents taking shared parental leave but it paid 18 weeks' enhanced pay to mothers on maternity leave.

Mr Hextall brought a claim for direct and indirect sex discrimination on the basis that had he been a woman on maternity leave, he would have been entitled to full pay during his period of leave.

The Employment Tribunal (”ET”) found that it was neither direct nor indirect discrimination. Mr Hextall appealed to the EAT in respect of the indirect discrimination claim only.

The EAT held applying a direct discrimination comparator (a woman on maternity leave) to an indirect discrimination claim meant the tribunal had erred in law.

Ali – Direct Discrimination

In the Capita case, Mr Ali claimed his employer discriminated against him because of his sex because he was denied the opportunity to take shared parental leave on full pay.

The ET in this case ruled that it was direct sex discrimination to allow Mr Ali only two weeks’ shared parental leave on full pay, when female employees could take 14 weeks’ maternity leave on their full salary.

This decision was overturned by the EAT last year, finding that the ET had erroneously interpreted that Mr Ali’s circumstances could be compared to those of a woman who had just given birth.

At the appeal hearing earlier this month, Mr Ali argued that more weight should be given to the caring responsibilities that parents have, which can be taken equally by women and men. He also noted that if the care of the child is the primary purpose of maternity leave after the compulsory two-week period, then it is valid to compare a mother on maternity leave to a father on shared parental leave.

The Decision

Mr Ali's appeal was dismissed with the Court of Appeal holding that the entire period of maternity leave following childbirth, and not just the first two weeks of compulsory maternity leave, is for more than just facilitating childcare. The purpose of maternity leave and maternity pay at the rate of full pay under Capita's scheme for the 12 weeks which are the subject of Mr Ali's claim was not purely to enable a hypothetical woman on maternity leave to care for her child but also the health and wellbeing of the mother.

The Court of Appeal dismissed Mr Hextall's appeal; allowed the Chief Constable's cross-appeal setting aside the order of the EAT; and restored the order of the ET dismissing Mr Hextall's claims. They agreed with the ET's initial assessment of the case that it is not the practice (of paying only statutory pay) which causes a particular disadvantage to men when compared with women. Mr Hextall's true case, as the ET observed, is that men in his position are disadvantaged not by the this practice but by the fact that only a birth mother is entitled to statutory or contractual maternity pay.

In further setting out its rationale the Court of Appeal stated that women on maternity leave are materially different from men and women taking shared parental leave for all the reasons set out in Mr Ali's case and should therefore be excluded from the pool. They also noted they believed any disadvantage to the claimant was justified as being a proportionate means of achieving a legitimate aim, namely the special treatment of mothers in connection with pregnancy or childbirth. Therefore there was no indirect discrimination against Mr Hextall.

If your organisation has any queries about the application of family friendly policies, please do not hesitate to get in touch with one of our specialist employment lawyers. 

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