Shared parental leave and discrimination – the latest from the EAT18/05/18
The last few weeks have seen two decisions from the Employment Appeal Tribunal (EAT) on the key question of whether a man taking shared parental leave (SPL) is entitled to the same rate of pay as a female employee taking maternity leave.
In Capita Customer Management Ltd v Ali and another, A argued that Capita’s decision to pay SPL at a statutory rate amounted to direct sex discrimination. He compared himself with a woman on maternity leave, who would receive enhanced maternity pay. He also alleged that this was an act of indirect sex discrimination, because it was a practice which was more likely to disadvantage men than women.
The Employment Tribunal upheld A’s claim of direct discrimination on the basis that A could compare himself to a hypothetical female employee taking leave to care for her child after the 2 week compulsory maternity leave period. A’s indirect discrimination claim was dismissed.
Capita appealed to the EAT.
In the case of Hextall v Leicestershire Police, H, a police officer, also claimed that the failure to pay him enhanced shared parental pay amounted to both direct and indirect sex discrimination.
In Hextall, the Employment Tribunal held that there was no direct sex discrimination as the correct comparator to a man on SPL was a woman on SPL (who was entitled to the same terms), and not a woman on maternity leave. The Employment Tribunal then applied that finding to H’s indirect discrimination claim, which was also dismissed.
H appealed to the EAT in respect of the finding on indirect discrimination. He did not appeal the finding of the Employment Tribunal in the direct sex discrimination claim.
In Capita the EAT upheld the appeal, finding that A had not been discriminated against. The EAT noted that the primary purpose of the EU Parental Leave Directive, on which the right to SPL is based, is the care of the child. This is in contrast with the purpose of the Pregnant Workers Directive on which the paid maternity leave provisions are based, which is the promotion of the health and well-being of the mother. Accordingly the EAT found that A could not compare himself to a woman in the first 26 weeks’ of maternity leave and the correct comparator was a woman on SPL, who would receive the same pay as a man.
The EAT noted that it may be that after 26 weeks’ maternity leave, the purpose of maternity leave may change and become analogous to that of shared parental leave, and a claim on those facts may have succeeded.
In Hextall, looking at the indirect discrimination claim, the EAT found that the Employment Tribunal had been wrong to find that paying SPL at the statutory rate did not put men at a disadvantage because both men and women were entitled to the same amount. The EAT commented that this was an example of an apparently neutral practice, in that it applied to everyone, but this does not mean that it does not have a disparate impact on a particular group. The claim has accordingly been remitted to a fresh Tribunal to analyse whether or not H was placed at a particular disadvantage.
Leave to appeal to the Court of Appeal has been granted in the Capita case but was refused in Hextall.
What to take away
It is clear from the Capita and Hextall Judgments that the failure to pay SPL at the same rate as maternity leave will not amount to direct sex discrimination.
What remains unclear, however, is whether this could amount to indirect sex discrimination. Without a definitive finding at appeal stage in Hextall as to whether there has been a disparate impact, the law relating to shared parental leave and indirect discrimination is likely to remain in a state of uncertainty for some time to come.