UK shared parental leave ruling could open way to more claims

A recent ruling by the UK’s Employment Appeal Tribunal (EAT) on shared parental leave potentially opens up the door to a raft of new indirect discrimination claims on behalf of fathers.

The EAT indicated that employers who enhance maternity pay but pay only the statutory rate for shared parental leave (SPL) are potentially indirectly discriminating against men. The decision came about after it re-examined a tribunal ruling in the case of Hextall v Chief Constable of Leicestershire Police.

Mr Hextall, a serving police constable and new father, had been told that being denied the opportunity to take SPL on full pay was neither direct nor indirect sex discrimination. But Hextall attested that, had he been a female police constable on maternity leave (ML), he would have been entitled to his full salary for the period he took SPL.

He claimed indirect sex discrimination by Leicestershire Police Force as the only option for men was SPL at a statutory pay rate.

Jenny Arrowsmith, employment partner at Irwin Mitchell, told People Management that the issue was whether the police’s policy of enhancing maternity pay for the first 18 weeks but only paying SPL at statutory rates, amounted to indirect discrimination.

"Even if this is made out, employers can attempt to justify their policy – by, for example, arguing that enhancing maternity pay promotes loyalty and encourages retention," she said. "The argument was that the rate of pay for SPL is the same for both mother and father and the EAT found that it could have a disparate impact on fathers, because they – unlike mothers who can take ML – have no other choice if they wish to take leave to care for their child."

Sarah Jackson, chief executive of charity Working Families, which intervened in the case, urged employers to carefully consider the aims and benefits of enhancing only one sort of parental pay.

But Anthony Fincham, employment partner at CMS pointed out: "The door to indirect discrimination claims has been reopened by this case. Where an employer pays enhanced maternity pay but fails to pay enhanced shared parental pay, it would need to find an objective justification other than cost for this approach.”

As a result, he believes that further claims are likely – and that the “only safe course would be to adopt a consistent approach in enhancing the different benefits".

Emma Woollacott is a freelance business journalist. Her work has appeared in a wide range of publications, including the Guardian, the Times, Forbes and the BBC.

A recent ruling by the UK’s Employment Appeal Tribunal (EAT) on shared parental leave potentially opens up the door to a raft of new indirect discrimination claims on behalf of fathers.

The EAT indicated that employers who enhance maternity pay but pay only the statutory rate for shared parental leave (SPL) are potentially indirectly discriminating against men. The decision came about after it re-examined a tribunal ruling in the case of Hextall v Chief Constable of Leicestershire Police.

Mr Hextall, a serving police constable and new father, had been told that being denied the opportunity to take SPL on full pay was neither direct nor indirect sex discrimination. But Hextall attested that, had he been a female police constable on maternity leave (ML), he would have been entitled to his full salary for the period he took SPL.

He claimed indirect sex discrimination by Leicestershire Police Force as the only option for men was SPL at a statutory pay rate.

Jenny Arrowsmith, employment partner at Irwin Mitchell, told People Management that the issue was whether the police’s policy of enhancing maternity pay for the first 18 weeks but only paying SPL at statutory rates, amounted to indirect discrimination.

"Even if this is made out, employers can attempt to justify their policy – by, for example, arguing that enhancing maternity pay promotes loyalty and encourages retention," she said. "The argument was that the rate of pay for SPL is the same for both mother and father and the EAT found that it could have a disparate impact on fathers, because they – unlike mothers who can take ML – have no other choice if they wish to take leave to care for their child."

Sarah Jackson, chief executive of charity Working Families, which intervened in the case, urged employers to carefully consider the aims and benefits of enhancing only one sort of parental pay.

But Anthony Fincham, employment partner at CMS pointed out: "The door to indirect discrimination claims has been reopened by this case. Where an employer pays enhanced maternity pay but fails to pay enhanced shared parental pay, it would need to find an objective justification other than cost for this approach.”

As a result, he believes that further claims are likely – and that the “only safe course would be to adopt a consistent approach in enhancing the different benefits".

Emma Woollacott is a freelance business journalist. Her work has appeared in a wide range of publications, including the Guardian, the Times, Forbes and the BBC.