Parental leave decision

Last year, in the case of Chief Constable of Leicestershire v Hextall, the Court of Appeal decided that it was not discriminatory to pay men on shared parental leave less than a woman received whilst on maternity leave.

Hextall asked for permission to appeal the decision and rumours abound that the Supreme Court has denied it. The Court of Appeal decision therefore stands and in summary the decision was: 

• Hextall took 14 weeks’ shared parental leave. He was paid at the statutory rate.
• Hextall’s female colleagues were paid 18 weeks’ full pay for maternity leave.
• Hextall claimed direct and indirect sex discrimination, which were rejected by the employment tribunal.
• Hextall appealed and the Employment Appeal Tribunal (EAT) decided that Hextall had been indirectly discriminated against.
• The Chief Constable then appealed, and the Court of Appeal agreed with the Chief Constable.
• The Court of Appeal accepted that, on the face of it, Hextall had a claim for equal pay and therefore discrimination. However, the right to equality does not apply where the female comparator’s higher pay related to pregnancy or childbirth and the claim for direct discrimination therefore failed.
• The Court of Appeal also decided that Hextall could not successfully claim indirect discrimination. The right to claim indirect discrimination does not arise where the less favourable treatment complained of is the result of an entitlement to maternity leave and maternity pay.
• Although it didn’t need to, the Court of Appeal went on to conclude the indirect discrimination claim would have failed anyway. It decided that the disadvantage of the lower rate was due to the fact that only a birth mother was entitled to statutory and contractual maternity pay and that a woman on maternity leave was in materially different circumstances from a man (or woman for that matter) taking shared parental leave. It continued, if there was any disadvantage, this was a proportionate means of achieving the legitimate aim (in other words ‘objectively justified’) as it related to pregnancy or childbirth.

Given the refusal of permission to appeal (which I have not yet seen) the Court of Appeal's decision remains binding and it seems that employers who pay enhanced maternity pay are not obligated to also pay enhanced parental leave pay (or for that matter paternity leave pay). 

I am a employment solicitor based in our Colchester office. I can be contacted on 01206 217318 or julie.temple@birkettlong.co.uk.