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Where Maternity Pay is enhanced and Shared Parental Pay isn’t – what are the risks of discrimination?

Last month we reported on the case of Capita Customer Management Ltd v. Ali [2018] UKEAT 0161/17 where the EAT held  that Capita did not directly discriminate against its male employees by paying women enhanced maternity pay for the first 14 weeks of maternity leave whilst paying only statutory pay during shared parental leave. The EAT judge ruled that the purpose of shared parental leave is to enable a parent to care for a child, whereas the purpose of maternity leave (or at least the 14 week period guaranteed by EU law) is to protect the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. This difference means the position of a woman in the first 14 weeks of maternity leave cannot be compared with that of a man on shared parental leave. Therefore, the claim of direct discrimination failed as, in this case, the enhanced MP was paid for no more than 14 weeks. The case has already been given leave to appeal to the CA.

This month in Hextall v Chief Constable of Leicestershire Police the EAT held that the ET was wrong to find that for an indirect discrimination claim, the PCP identified (that is paying only the statutory rate of pay for those taking a period of shared parental leave) did not put men at a particular disadvantage when compared with women. The disadvantage claimed is that the rate of pay for shared parental leave is the same for both father and mother, but it has a disparate impact on fathers because they, as opposed to mothers, have no other choice and are or would be deterred from taking leave to care for a child. The next step is to  identify the comparative disadvantage and, held the EAT, identifying a pool for testing disparate impact of a PCP on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim. Hence the ET were wrong to rely on a woman on ML as the comparator, instead the relevant pool for testing whether men suffered a relative disadvantage by the application of the PCP would be those police officers with present or future interest in taking leave to care for their newborn child.

The indirect discrimination claim was remitted for rehearing before a differently constituted Employment Tribunal in order to use data and facts to construct the size or composition of the appropriate pool.

What do these cases mean for employers?

Many employers who pay more than the statutory minimum during maternity leave have chosen not to mirror those enhancements for shared parental leave. For those who confine enhanced maternity pay to the first 14 weeks of leave, the decision  in Capita Customer Management Ltd v. Ali [2018] UKEAT 0161/17 provides a measure of comfort in respect of claims for direct discrimination (but the case is being appealed)

We await to see if the EAT decision in Hextall v Chief Constable of Leicestershire Police will be appealed but, in the meantime, it leaves employers at risk of indirect discrimination complaints, depending on a claimant establishing comparative disadvantage.

For more insight into the Hextall Decision, please see the blog here from Rachel Cransnow QC, barrister at Cloisters, a set which provides expert content for Emplaw Online in matters including TUPE, Unfair Dismissal and ET  and EAT procedure