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        Shared parental leave: The saga continues with the EAT leaving a door open to potential indirect discrimination claims

        In the case of Hextall v The Chief Constable of Leicestershire Police ("the Respondent Police Force") the Employment Appeal Tribunal ("EAT") has remitted the claim of indirect discrimination to a fresh Employment Tribunal to consider whether it is indirectly discriminatory to pay mothers enhanced maternity pay and fathers statutory shared parental leave pay.

        Date: 02/05/2018

        Background

        Mr Hextall joined the Respondent Police Force in 2003 and currently works in the Roads Armed Policing Team. Following the birth of his second child on 29 April 2015 he took a three month period of shared parental leave and was paid at the statutory rate of pay (£139.58 per week at the time). A female police constable on maternity leave would have been entitled to her full salary during this period. Mr Hextall brought claims of direct and indirect sex discrimination.

        A quick re-cap on indirect discrimination 

        Indirect discrimination occurs where a provision, criterion or practice ("PCP") is applied by an employer to all employees but puts those with a protected characteristic at a particular disadvantage compared to others. The obvious example would be a requirement for all employees to work full time. This PCP of working full time arguably disadvantages women as a group as women as a whole are more likely to carry out childcare duties than men. Employers can potentially justify indirect discrimination if the PCP can be shown to be a proportionate means of achieving a legitimate aim.

        Employment Tribunal 

        The Employment Tribunal found that Mr Hextall was not discriminated against either directly or indirectly. Mr Hextall appealed to the EAT with regard to his claim of indirect discrimination. He did not appeal the finding of no direct discrimination. The Respondent Police Force cross-appealed arguing that the claim was one of equal pay and not discrimination.

        The EAT 

        The EAT dismissed the Respondent's cross-appeal and held that the case was a question of discrimination not equal pay.
        With regard to the indirect discrimination appeal the EAT found that the Employment Tribunal had erred in its analysis. The EAT was clear that the following steps should have been taken:

        1. Identify the PCP. The Employment Tribunal did correctly identify the PCP as "paying only the statutory rate of pay for those taking a period of shared parental leave".
        2. Identify the particular disadvantage. The Tribunal did not clearly identify the particular disadvantage. By the time the case reached the EAT the particular disadvantage had been clearly identified - fathers have no choice but to take shared parental leave whereas mothers have the option of taking maternity leave at full pay. This was not clear at the Employment Tribunal and so the point requires further consideration.
        3. Identify the logically appropriate pool for testing whether a PCP disproportionately disadvantages men. No facts were found by the Employment Tribunal which would enable this analysis to be made. It is necessary to determine whether there is a disparate impact on men. 

        The EAT has remitted the case to a new Employment Tribunal to consider the indirect discrimination claim as outlined above.

        Comment

        The EAT has tantalisingly left the door open to a successful indirect discrimination argument, however, we will have to wait and see what the Employment Tribunal find when they analyse the case again. Although there do seem to be some compelling arguments that the PCP as now identified may be indirectly discriminatory, there is still the question of justification.The EAT in the recent case of Ali v Capita outlined the importance of the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. It is likely that we will see these arguments raised at the Employment Tribunal with regard to justification.

        This case means that, after the relative clarity provided by Ali v Capita, the current state of the case law is again shrouded in uncertainty and leaves an unsatisfactory position for employers and employees. For now employers need to bear in mind that while paying enhanced maternity pay and only statutory shared parental leave pay will not amount to direct discrimination, it may still amount to indirect discrimination.

        Regardless of the eventual outcome of this particular case, employers who pay enhanced maternity pay but statutory shared parental pay will need to focus on how they can justify the differential.

        We will keep you updated.

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