Shared parental leave - indirect discrimination

22 May 2018

Men are more likely to take shared parental leave without first being offered the option of taking maternity leave, which is paid at an enhanced rate.

Hextall v Chief Constable of Leicestershire Police also deals with not enhancing shared parental leave; but in this case, the claim was one of indirect discrimination (i.e. the application of a provision, criterion or practice (PCP) which puts those sharing a particular protected characteristic at a disadvantage which cannot be justified by the employer). PC Hextall took shared parental leave when his self-employed wife gave birth to their second child in April 2015. His leave lasted from June to September, and over that time he was paid at the statutory minimum rate. He argued that had he been a female police officer who had given birth to a child he would have been able to take maternity leave and would have been paid his full salary over that period.

The Tribunal rejected his claim of direct discrimination and his alternative claim of indirect discrimination. In each case the Tribunal held that women taking maternity leave were not appropriate comparators for a man taking shared parental leave. PC Hextall’s appeal to the EAT focused on the issue of indirect discrimination.

The EAT held that for indirect discrimination the question was whether the ‘provision, criterion or practice’ at issue caused a particular disadvantage to those who shared a protected characteristic. In this case the question was whether men were placed at a particular disadvantage when compared with women by the employer’s policy of providing fully paid maternity leave but only statutory shared parental leave. The Tribunal had held that both men and women taking shared parental leave received the same pay and that men were not therefore at a disadvantage. But the EAT held that was the wrong approach. It was inherent in an indirect discrimination claim that the 'provision criterion or practice' was applied to women as well as men. The point was that, as the Tribunal accepted, men were overwhelmingly more likely than women to take shared parental leave without first being entitled to take maternity leave. The whole matter of indirect discrimination was sent back to a different Tribunal to be considered afresh.

It seems likely that at the fresh hearing it will be found that the employer’s policy causes men a particular disadvantage. The question will then be whether it is justified as a ‘proportionate means of achieving a legitimate aim’. Judging from this initial appeal, it may be some time before we get clear guidance on that issue.

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