The Employment Appeal Tribunal has handed down judgment in the appeal case of Hextall v Leicestershire Police UKEAT/0139/17/DA. Mr Hextall is a police officer who took Shared Parental Leave. However, under the informal national policy that exists at the current time in relation to the payment of such leave, he was paid only at the statutory rate and not the enhanced rate paid to mothers taking maternity leave.

Mr Hextall argued that that policy put men at a particular disadvantage compared to women because it acted as a financial disincentive to their taking such leave where mothers had the alternative option of taking maternity leave. As such, he said, it constituted unlawful indirect sex discrimination. Hextall is linked to another (non-police) case, Capital v Ali UKEAT/0139/17/DA. 

In short, the Employment Appeal Tribunal decided that a failure to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave potentially constitutes indirect sex discrimination. Jonathan Davies represented Leicestershire Police in both the employment tribunal and the Employment Appeal Tribunal.

The appeal in Capita v Ali concerned direct discrimination. The appeal in Hextall concerned indirect discrimination (arising from Mr Hextall’s appeal) and equal pay (arising from Leicestershire Police’s cross-appeal). Leicestershire Police had argued before the employment tribunal that the Claimant’s true claim was one of equal pay and hence subject to the defence contained in section 80(8) and paragraph 2 of Schedule 7 of the Equality Act 2010 (which is entitled ‘Pregnancy’) and which effectively prohibits complaints of equal pay in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth. The ambit of this defence was considered in Capita v Ali and upheld in the circumstances of this kind of case. Both judgments are highly technical and, in places, delve right to the core concepts that underlie equality law.  

Equality legislation provides for equal treatment of men and women at work but expressly excludes equality of treatment of mothers and fathers.  This exclusion obviously exists as a matter of policy with the purpose of enabling employers to give mothers more favourable treatment when they have given birth than fathers. The aim is that women suffer no detriment in the workplace as a result of having children. However, the judgment in Hextall now suggests that there is a gap in that exclusion - and that in certain circumstances, an employer cannot give rights to women who have given birth which they do not offer to men in comparable circumstances. 

In Capita v Ali, the Employment Appeal Tribunal determined that the failure to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave did not constitute direct discrimination because the exclusion applied. The exclusion is to be found in relation to direct discrimination in section 13(6)(b) and in relation to equal pay in section 80(8) and paragraph 2 of Schedule 7 of the Equality Act 2010. There is no express provision relating to indirect sex discrimination.

In Hextall, the Employment Appeal Tribunal held that the employment tribunal had erred in rejecting Mr Hextall’s claim of indirect sex discrimination because it had not properly analysed the issue of particular disadvantage. The case has been remitted back to a freshly constituted Employment Tribunal so that that exercise can be carried out. The judgment does not suggest that this exercise should or would yield any particular result. 

The PCP that the claimant advanced was the paying of the statutory rate of pay to those taking SPL. Essentially, the Employment Appeal Tribunal found that the employment tribunal had misunderstood the disadvantage that the Claimant was seeking to demonstrate and, thereby, had not considered the correct pool for analysis. The relevant pool was defined in the judgment at para 59 as "those police officers with present or future interest in taking leave to care for their newborn child". 

Permission to appeal to the Court of Appeal has been granted in Ali and was refused by the EAT in Hextall. It is a well-established principle of equality law that the causes of action in the Equality Act 2010 are mutually exclusive; an alleged act cannot simultaneously be both direct and indirect discrimination or, for that matter, either of those and a breach of the sex equality clause, being the basis of claims for equal pay.

Until and/or unless there is either a successful appeal in Hextall or Ali or a definitive finding as to disparate impact in Hextall, i.e. a finding of the employment tribunal as to disparate impact that is approved on appeal, the current position is that to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave:

- does not constitute direct discrimination;

- is not a breach of the sex equality clause

- may constitute indirect sex discrimination.

 

Jonathan is very happy to give advice or provide training into this and other employment and discrimination law issues.