In our April bulletin we covered the case Capita v Ali. In this case the EAT held that there was no direct discrimination against a father where an employer did not enhance its shared parental pay in line with its enhanced maternity pay. The EAT has recently considered whether this failure to enhance amounts to indirect discrimination in Hextall v Chief Constable.
The Claimant’s employer (the “Respondent”) paid the statutory minimum to employees on shared parental leave, but paid enhanced maternity pay to female employees who opted to take maternity leave. Female employees have the option to take either shared parental leave or maternity leave, however, as the maternity pay provided by the Respondent was greater than the shared parental pay it was accepted that the overwhelming majority of persons taking shared parental leave was likely to be male employees.
The Claimant took shared parental leave after his wife gave birth to their second child and was paid at the rate of £139.58 per week. Had he been a woman, he would have been entitled to full pay. The Claimant regarded this disparity in pay as unfair and “wanted pay for men taking shared parental leave following the birth of their child at a rate equivalent to that which women on maternity leave are paid”.
In the first instance the Claimant, who was employed as a police constable, submitted claims to the employment tribunal for direct and indirect discrimination. These claims were set aside. The Claimant appealed the decision in respect of the indirect discrimination claim only. Indirect discrimination is where a provision, criterion or policy, which is put in place by an individual or organisation, has the effect of disadvantaging a person or group of people with a particular protected characteristic. In this case ‘sex’ is the protected characteristic concerned.
The claim at hand was made on the basis that a provision contained in the Respondent’s policies, namely “paying only the statutory rate of pay for those taking a period of shared parental leave”, was indirectly discriminatory against men. This provision is taken from the Respondent’s Shared Parental Leave - Police Officers material and is contractual enforceable.
The EAT contended that the employment tribunal erred in its reasoning and that it did not properly consider the test for indirect discrimination. The errors in the employment tribunal’s decision-making lead to its decision to dismiss the claim for indirect discrimination. In its judgement the EAT submitted that the employment tribunal wrongly held that men were not put at a particular disadvantage in comparison with women in this case and that the provision relied upon by the Claimant applies to men and women equally. Furthermore, the EAT held that the employment tribunal had misdirected itself in its identification of the relevant “pool” for comparison.
The EAT focused in particular on the employment tribunal’s failure to properly identify the disadvantage put forward by the Claimant. The fact that both men and women were paid the same if they opted to take shared parental leave was not relevant; the issue was that a man’s only option is to take shared parental leave at the statutory rate, whereas women may opt to take maternity leave at full pay. The employment tribunal “erred in excluding women on maternity leave from the pool for comparison relevant to the indirect discrimination claim.”
The EAT has remitted the claim for rehearing. As it stands, the question as to whether a disparity between shared parental and maternity pay is indirect discrimination remains unresolved. We eagerly await the employment tribunal’s decision which should provide clarity on this issue.