Is shared parental leave indirect sex discrimination?

The Employment Appeal Tribunal found that the ET reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim was wrong, it also found that it had failed to base its decision on the impact of the leave policy.

In the case, Hextall v Chief Constable Leicester Police, Hextall is a serving police constable in the Roads Armed Policing Team at Leicester Police.

In April 2015 his second child was born and he took SPL from June 1 to September 6 2015 and was paid at the statutory rate of £139.58 per week for that period.

Had Hextall been a female constable on maternity leave, he would have been entitled to his full salary for the period over which he took the SPL.

Hextall claimed indirect sex discrimination in that the only option for men taking leave after the birth of their child is SPL at the statutory rate of pay, whereas women have the option of taking maternity leave on full pay.

In her summary, the Honourable Mrs Justice Slade, said: “The ET erred in adopting their reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim.

“The identifying of a pool for testing disparate impact of a provision, criterion or practice on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim.

“Further the ET erred in failing to base their decision on the disparate impact relied upon: Fathers have no choice but to take SPL at the statutory rate of pay whereas mothers have the option of maternity leave at full pay. Appeal allowed. Claim of indirect sex discrimination remitted for rehearing to a differently constituted ET.”