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Shared Parental Leave: paying fathers and mothers different rates is Discrimination (after all).

1st May 2018

The Employment Appeal Tribunal recently decided in Capita Customer Management v Ali UKEAT/0161/17 that paying mothers on maternity leave at a higher rate than fathers on maternity leave does not constitute direct sex discrimination.

The law has now taken a different turn.

In Hextall v Leicestershire Police UKEAT/0139/17/DA, the Employment Appeal Tribunal found that a PCP of paying men and women Shared Parental Leave at the same rate potentially constitutes indirect discrimination because the effect such a policy could have in discouraging men from taking such leave relative to women who have the opportunity of taking maternity leave at the higher enhanced rate.

The Employment Appeal Tribunal rejected the employer police force’s contentions that Mr. Hextall’s true claim was of Equal Pay and hence subject to the ‘special treatment afforded to a woman in connection with pregnancy or childbirth’ defence.

The case has been remitted back to an employment tribunal so that it can carry out a proper analysis of the disparate impact of the policy.

Permission to appeal to the Court of Appeal has been granted in Ali v Capita and was refused by the EAT in Hextall v Leicestershire Police. 

The judgment can be viewed here:

Jonathan Davies appeared for Leicestershire Police both in the Employment Tribunal and in the Employment Appeal Tribunal.

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