In July 2017, we reported on the case of Ali v Capita in which an employee won a discrimination claim because he received less shared parental leave pay (SPLP) than a woman on maternity leave. A previous case reached the opposite conclusion at tribunal last year. Both are going to the Employment Appeal Tribunal.
The decision in Ali examined the core legal principles around the discrimination arguments in a summary manner. The case of Hextall v The Chief Constable of Leicestershire Police is more useful for any employer looking to maintain higher levels of occupational maternity pay than SPLP. An employer currently facing similar challenges from employees can therefore rely on the Hextall decision to resist grievances and complaints of this nature and may want to wait until the matter has been addressed at the EAT.
Hextall will also re-examine the special treatment exception for pregnant employees and those on maternity leave under the Equality Act 2010 (Eq Act) and the principle in the case of De Belin v Eversheds LLP, potentially arguing it was decided wrongly.
Mr. Hextall argued that he should get the same 18 weeks enhanced pay as the police authority paid to women on maternity leave relying on the police equivalent of the Shared Parental Leave Regulations 2014 and the Eq Act.
- First the Tribunal considered whether Mr. Hextall’s claim (because it was about pay inequality) was an equal pay claim. The Tribunal decided this was not the right way in which to construct the case because employees, regardless of gender, had the same contractual provisions as to enhanced maternity pay and shared parental leave pay. It could not be argued as between Mr. Hextall and his named comparator (PC 836) that her contractual term was more favourable: “The two contracts are in fact identical” and “his contract includes a right to enhanced MP, but, obviously, he will never get it in practice because only women can”.
- On direct discrimination, again he failed. The Tribunal rejected the argument that PC836 was the appropriate comparator; the correct comparator was a woman taking SPL (the wife or civil partner of a woman who had just given birth). That person would be treated in exactly the same way as Mr. Hextall. PC 836’s position was materially different and she was not a valid comparator.
- The Tribunal also decided that the failure to match enhanced pay was not inherently discriminatory. Only women benefited. This it said was to turn the principle of sex discrimination because of pregnancy and maternity “on its head”. “One does not have to be a man in order to be someone who is not the birth mother”, the fact he did not receive any enhancement because he had not given birth was not “inextricably linked with his sex” rather it was linked to the mother’s sex.
- Finally, Hextall didn’t persuade the Tribunal that the provision amounted to indirect sex discrimination. Paying the statutory rate was a provision applied to both men and women and not particularly disadvantageous to men. The PCP (paying enhanced maternity pay) was actually a PCP that only applied to women so inevitably had to be direct and not indirect sex discrimination.
Although the case did not turn on the question of justification, the Tribunal went on to consider whether paying enhanced maternity pay could be justified as either:
- special treatment in connection with pregnancy and maternity leave - a specific exception in section 13 Eq Act, or
- justification of any indirect sex discrimination.
The Tribunal accepted the Respondent’s enhancement to full pay for the first 18 weeks maternity leave was reasonably necessary to compensate for the disadvantage caused to women due to pregnancy and childbirth (there is research and evidence to support this). It said this was proportionate in accordance with the De Belin gloss on the wording in section 13: that an employer does not just need to satisfy the Tribunal that the measure is connected to pregnancy and childbirth and disadvantage but that it is also proportionate.
But the Tribunal was not satisfied the enhanced pay was objectively justified - so if the PCP argument had been established, the employer would have lost on its defence of it. Part of the reason for this was other reasons which influenced the employer’s decision not to match SPLP; this included concerns about being inconsistent with other police forces and because the authority was waiting for a definitive decision from the Home Office as to whether to reduce enhanced maternity pay to the statutory level - in other words to match SPLP by removing the enhancement. One can see why this was a less attractive explanation and rationale.
What to expect next
Pending the EAT outcomes and whilst we have two conflicting outcomes, Hextall contains the more extensive exploration of the legal principles, and thus will be of particular interest. Many of the key principles attaching to this debate and section 13 Eq Act will be reconsidered.
In Hextall, the 18 weeks enhancement was thought to be proportionate; if this is revisited at the EAT, it was suggested by the employer that arguments about the correctness of De Belin would be made. One could envisage a situation where longer periods of enhanced pay (for example six months at full pay) could come under further scrutiny.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.