Blog - 04/03/2020
Some are less equal than others
The Supreme Court has refused an application for permission to appeal the Court of Appeal’s (CoA) decision in Chief Constable of Leicestershire v Hextall. This means that the CoA’s decision in the joint case of Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall remains binding (for our commentary on the Employment Appeal Tribunal decision in Ali v Capita Customer Management Ltd click here to see our previous blog.)
The CoA heard the joint case in May last year. The case considered the question of whether it is either discrimination or a breach of the sex equality clause, implied into all terms of work, for men to be paid less while on shared parental leave than birth mothers are paid while on statutory maternity leave.
Ali v Capita Customer Management Ltd
Capita had a policy of enhanced maternity pay, 14 weeks at full pay followed by 25 weeks of Statutory Maternity Pay (SMP). By contrast men taking shared parental leave were paid only paid statutory shared parental leave pay with no enhancement.
Mr Ali claimed unlawful direct discrimination. The appeal was dismissed on the same basis as is set out in our earlier blog, namely that a mother on maternity leave is not a comparator for a man on shared parental leave. The two types of leave serve different purposes. The CoA found that there was a material difference between Mr Ali and a woman on maternity leave and that the correct comparator for a man on shared parental leave was a woman also on shared parental leave, rather than a woman on maternity leave. The predominant purpose of maternity leave “is not [just] child care but other matters exclusive to the birth mother resulting from pregnancy and childbirth not shared by the husband or partner”.
The CoA therefore dismissed the appeal.
Chief Constable of Leicestershire v Hextall
This case concerned similar facts whereby the constabulary had a policy of paying an enhanced rate for maternity leave but only statutory rate for shared parental leave. In this case however, Mr Hextall argued that the lack of enhanced pay on shared parental leave was indirectly discriminatory.
Mr Hextall claimed that the constabulary’s ‘policy’ of “paying only the statutory rate of pay for those taking shared parental leave”, although applied to all employees, was indirectly discriminatory on the grounds that this put men at a particular disadvantage compared to women.
In the event, the CoA found that Mr Hextall’s claim was in fact to be determined as an equal terms claim, not an indirect discrimination claim.
The correct question therefore was whether Mr Hexall’s terms of work should be modified to include a term stating that he should be paid for his shared parental leave at the same rate as a female employee receiving enhanced maternity pay. The CoA found that any such claim was precluded by virtue of Schedule 7 paragraph 2 of the Equality Act which states that the sex equality clause does not operate to amend a ‘less favourable’ term when the reason for the difference in terms i.e. the enhanced maternity pay, is afforded to women in connection with pregnancy and maternity.
Following the above conclusion, Mr Hextall was then prevented from advancing any claim for indirect discrimination. This is because claims for equal pay and indirect discrimination are mutually exclusive and can not be brought in conjunction with one another. However, the CoA gave its hypothetical view on the indirect discrimination claim.
In short, the Court determined that the policy applied equally to both men and women taking shared parental leave and therefore that men were at no particular disadvantage as compared to women.
The CoA has thus confirmed that paying men taking shared parental leave less than is paid to a woman on maternity leave is neither discriminatory nor a breach of the Equal Pay Act 1970. While it remains open to employers to offer enhanced payments for those taking shared parental leave it is not discriminatory not to do so.
If you have any questions regarding this topic, please contact Linky Trott, or any member of the Employment Team.
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