Last week, the UK Employment Appeal Tribunal overturned a lower tribunal’s ruling in favor of a father who sued for discrimination after being denied enhanced pay while taking shared parental leave, Jo Faragher reported at Personnel Today, but returned the case to the lower court to reconsider whether the father in question was a victim of indirect discrimination:
In the case of Hextall v Chief Constable of Leicestershire Police, a male worker claimed that his employer had discriminated against him because of his sex as he was only entitled to receive statutory shared parental pay, when the employer paid enhanced maternity pay. …
Mrs Judge Slade ruled that the initial tribunal had erred in applying a direct discrimination comparator (as in a woman on maternity leave) to an indirect discrimination claim, so the latter will now be heard by an employment tribunal at a future date.
This case was similar to that of Ali v. Capita Customer Management, in which the Appeal Tribunal ruled last month that the plaintiff Mr. Ali had not been discriminated against when his employer, which offered enhanced maternity pay to new mothers, told him he was entitled to the statutory rate prescribed in the UK Shared Parental Leave law for his paternity leave beyond the first two weeks.
In that case, the higher tribunal said it was an error to treat Ali’s circumstances as directly comparable to those of a woman who had recently given birth, ruling that maternity leave and enhanced maternity pay have an additional purpose of supporting the “health and wellbeing of a woman in pregnancy, confinement and after recent childbirth,” which goes beyond the purpose of parental leave generally.
The Hextall case, in contrast, leaves open the possibility that working fathers like Ali and Hextall suffered indirect discrimination—which under UK law refers to a policy that is applied equally but puts a certain class of people at a disadvantage—as a result of their employers offering enhanced maternity pay. Employers must await further clarity from the tribunals on this question.
The nonprofit organization Working Families, which advocates for more family-friendly workplace policies, had intervened in both cases to argue for the validity of enhanced maternity pay. Although the charity supports greater rights and pay for working fathers, it says these should “complement, not undermine, the rights of working mothers.” Regarding the Ali case, they said a final ruling for the plaintiff would have led employers to abandon enhanced parental pay for mothers rather than also extending it to fathers.
With the door to indirect discrimination claims reopened, Anthony Fincham, an employment partner with law firm CMS, tells Faragher that more litigation is likely to arise:
“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. We can expect to see further claims and the only safe course would be to adopt a consistent approach in enhancing the different benefits.”