The EAT has held, in Hextall v Chief Constable of Leicestershire Police, that indirect sex discrimination claims may be possible where an employer fails to pay enhanced shared parental pay but does pay enhanced maternity pay.
Whilst the EAT was unable to make a final decision in this case (and has remitted it to be heard by a different tribunal), its comments suggest that indirect sex discrimination claims in this context may be possible, although an employer might still be able to show that its decision was objectively justified.
This decision follows the EAT’s decision last month that a failure to pay enhanced shared parental pay was not direct sex discrimination.
The male employee in Hextall was paid only statutory shared parental pay during a period of shared parental leave. Female police constables working for the same police force were paid up to 18 weeks’ full pay during maternity or adoption leave. Mr Hextall brought direct and indirect sex discrimination claims arguing that he should have received full pay during his shared parental leave.
The Tribunal dismissed both of his claims. In summary, it held that Mr Hextall could not compare himself with a woman taking maternity leave because there was a material difference between them – the valid comparator should have been a hypothetical woman taking shared parental leave who was the wife or civil partner of a woman who had just given birth.
Although the indirect sex discrimination claim did not succeed, the Tribunal also briefly looked at whether the police force would have been able to objectively justify its decision if the claim had succeeded. It concluded that cost alone “does not justify the perpetuation of otherwise unlawful discrimination”.
Mr Hextall appealed his indirect sex discrimination claim.
The EAT’s judgment was handed down on 1 May 2018.
The EAT allowed Mr Hextall’s appeal. It held that the Tribunal had been wrong to apply the comparator test used in a direct discrimination claim to an indirect discrimination claim. The Tribunal should have asked itself “whether men seeking leave to care for a newborn child are put at a particular disadvantage compared with women in comparable circumstances”.
The EAT set out the elements that would need to be identified in an indirect sex discrimination claim:
- A provision, criterion or practice (“PCP”) – in this case, the PCP was paying only the statutory rate of pay for those taking a period of shared parental leave;
- That the PCP puts, or would put, people of the same sex as the claimant at a particular disadvantage when compared with people of the opposite sex – the EAT said that this required a “comparative exercise to decide whether the PCP put men at a particular disadvantage when compared with women in no materially different circumstances”; and
- A relevant pool for testing whether men suffered a relative disadvantage by the application of the PCP – in this case, the pool was those police officers with a present or future interest in taking leave to care for a newborn child.
Employers had hoped that this decision might bring certainty to the question of whether a failure to enhance shared parental pay is discriminatory. However, given that the case has been remitted to a new employment tribunal, we will now need to await the outcome of that decision. The new employment tribunal’s decision will not be binding but is likely to be useful in light of the EAT’s comments. It does seem, however, that the EAT considers successful indirect sex discrimination claims to be possible – and we can therefore expect to see further cases on this point.
In the meantime, employers should be aware that indirect sex discrimination claims can be objectively justified, albeit that any such defence would need to be looked at carefully since cost alone will not constitute valid justification.