The appeal tribunal has recently heard two cases concerning men who brought sex discrimination claims because they received statutory pay when on Shared Parental Leave (SPL) compared to women who received enhanced pay when on maternity leave. In the first case (Capita v Ali) we look at the facts of the claim for direct sex discrimination and in the second (below) we look at the facts of the claim for indirect sex discrimination and consider the implications. You will find a comment for both at the end of this summary.
In Hextall v Chief Constable of Leicestershire Police the Employment Appeal Tribunal (EAT) held that paying men on Shared Parental Leave (SPL) at the statutory rate when women on maternity leave would be paid at an enhanced rate could be indirect sex discrimination.
Indirect discrimination occurs where a provision, criterion or practice (PCP) is applied to both men and women but which puts men at a particular disadvantage when compared with women in not materially different circumstances, a man is actually put at a disadvantage and the employer cannot show that the PCP is a proportionate means of achieving a legitimate aim.
Equal pay occurs where there is a term in the contract which treats women more favourably than men and the employer cannot show that there is a material factor unrelated to sex which justifies the more favourable term.
Mr Hextall, a serving police officer, took SPL after his wife, who ran her own business, gave birth to their second child. During his 18 weeks’ SPL he was paid at the statutory rate of £139.58 per week, whereas a female police officer on maternity leave would have received her full salary.
This was because women within the police force and male or female primary carers on adoption leave were contractually entitled to full pay for 18 weeks. Mr Hextall claimed that he had been directly and indirectly discriminated against or was subject to unequal pay as a man because the rate of enhanced maternity pay was higher than the rate for SPL.
Rejecting all of Mr Hextall’s claims, the tribunal first considered whether the claim was for discrimination or equal pay. Under the Equality Act 2010 equal pay claims arise when there is inequality between men and women as to the contractual terms. As the contractual terms relating to SPL and maternity leave applied to both men and women (although men do not take maternity leave) the tribunal held that there was no difference and the claim was one of indirect discrimination.
As for his claim of indirect sex discrimination, the tribunal identified that the PCP was only paying the statutory rate of pay for those taking a period of SPL. It rejected the argument that men on SPL could compare themselves with women on maternity leave. The same applied to the claim of indirect discrimination and could not therefore succeed. Secondly, it held that the PCP of only paying the statutory rate for SPL was not particularly disadvantageous to men as the same amount was paid to both men and women who took SPL.
The EAT held that the tribunal was wrong to reject Mr Hextall’s claim for indirect discrimination on the basis that some women may also be disadvantaged by the PCP. The issue to be decided was whether men were put at a particular disadvantage by reference to the pool for comparison. This was a different exercise to that in a direct discrimination case which requires a comparison of the circumstances of the woman comparator and whether they can be distinguished from those of the man bringing the claim.
The particular disadvantage was that the rate of pay for SPL deterred men from taking leave to care for a child. On that basis, the correct pool for comparison would be those police officers with a present or future interest in taking leave to care for their new-born child. As the tribunal had misunderstood the particular disadvantage and had not identified the appropriate pool for comparison, the EAT therefore remitted the indirect discrimination claim to be reheard by a different tribunal. In doing so the EAT commented that the purposes of SPL and maternity leave may be a relevant consideration when determining the pool.
The government’s stated aim of SPL was intended to help parents combine work with family life by shifting the focus of primary care for a baby in the first year away from women. Ultimately, whether that aim would be achieved was dependent on employers living up to the challenge by ensuring SPL was supported by adequate shared parental pay. Some employers grasped the nettle and provided contractual enhanced parental pay on the same basis as contractual maternity pay but sadly most have not. The discrimination claims brought by Mr Ali and Mr Hextall are the result.
The arguments for a direct sex discrimination claim centre on whether a man on shared parental leave in receipt of SPL at the same level as statutory shared parental pay can compare himself to a woman in receipt of enhanced contractual maternity pay. Ultimately, that argument was rejected because the tribunal considered that the purposes of shared parental leave and maternity leave are different - the former being for the purpose of caring for a child and the latter to protect the health and safety of the birth mother.
The difficulty here is that in a claim of direct sex discrimination the legal test requires a comparison to be made with someone of the opposite sex whose circumstances are not materially different which seemingly undermines the aims of both maternity leave and SPL. The right to maternity leave and SPL should not be reduced to a contest between legitimate purposes because of the failure of government to implement legislation which would create a level playing field for all parents.
If the government genuinely wants parents to “share the joy” and encourage more than the current low take up of SPL (see this week’s news item) then they should do the right thing and ensure men receive enhanced paid parental leave on the same terms as women receive contractually enhanced maternity pay.