Enhanced pay and indirect discrimination: the latest on Hextall

Dr Anne Sammon considers the recent EAT decision in Hextall v Chief Constable of Leicestershire Police.

The decision in Hextall v Chief Constable of Leicestershire Police unfortunately provides no further clarity on whether offering lower amounts of enhanced pay for those on Shared Parental Leave (SPL) than for those on Maternity Leave could amount to sex discrimination.

The facts of Hextall

Mr Hextall was a serving police constable, whose wife ran her own business. Mr Hextall took SPL from 01 June to 06 September 2015, following the birth of his second child on 29 April 2015 and received Statutory Parental Leave Pay at the rate of £139.58 per week. At the time, his employer provided enhanced Maternity Pay for the first 18 weeks of Maternity Leave. He subsequently alleged that the failure to provide him with enhanced pay for this period of SPL amounted to either direct or indirect sex discrimination.

The Employment Tribunal (ET) decision

The ET found that there was no sex discrimination on the basis that Mr Hextall could not compare his period of SPL with that of a woman on Maternity Leave. In relation to the indirect discrimination claim, the ET found that the PCP that was applied, paying only the statutory rate of pay for those taking a period of SPL, did not put men at a particular disadvantage when compared to women and appeared to relate this to the fact that paying only the statutory rate of pay applied equally to both men and women.

The appeal to the Employment Appeal Tribunal (EAT)

Mr Hextall did not appeal the decision that offering only statutory pay for SPL in circumstances where his employer offered enhanced pay for Maternity Leave was direct discrimination. (In light of the outcome of the appeal in Capita Customer Management Ltd v Ali, which appears to leave open the question of whether providing enhanced pay for Maternity Leave of more than 14 weeks where this is not provided for SPL, this is unfortunate.) However, instead he appealed the decision on indirect sex discrimination.

The EAT held that the ET had erred in determining the question of disadvantage (that is, whether men were put at a particular disadvantage as compared to women), noting that the ET had failed to make a decision on the size or composition of the comparison pool. Without having identified the correct pool, the ET could not have reached a conclusion on the issue of disadvantage. The EAT also noted that the fact that a PCP was apparently neutral and applied equally to both men and women did not necessarily mean that it did not put men at a particular disadvantage. This is unsurprising, given that the purpose of indirect discrimination provisions has always been to consider apparently “neutral” practices. Given the failings in the ET decision, the EAT remitted the claim to a different ET for consideration.

Where does this leave us?

We will now need to wait for the ET’s new decision in Hextall v Chief Constable of Leicestershire Police to see whether the ET will hold that offering lower amounts of enhanced pay for those on Shared Parental Leave than for women on Maternity Leave constitutes indirect sex discrimination. Frequently in the context of indirect discrimination claims, the key issue is that of objective justification and the original ET in Hextall’s view was that the enhanced pay was not objectively justified (although this is not binding in any way on the new ET that will consider this case).

We are also left with the rather unsatisfactory situation from the decision in Capita Customer Management Ltd v Ali, which appears to leave open the question of whether providing enhanced pay for Maternity Leave of more than 14 weeks in circumstances where this is not provided for Shared Parental Leave might amount to direct sex discrimination.

In short, in both Hextall and Ali, the Tribunal has failed to provide employers with the certainty that they need to identify whether their practices in relation to enhanced Maternity Pay might, in certain circumstances, amount to sex discrimination. We are instead left waiting to see what the next instalment of cases might herald.

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