Working Families respond to EAT Hextall v Chief Constable Leicestershire Police

In the case of Hextall v Chief Constable Leicestershire Police, the EAT has ruled that Hextall, a police constable, was subject to indirect sex discrimination by only being able to take shared parental leave, instead of enhanced maternity leave.

Men who take shared parental leave, which is the only option for male employees, only receive statutory pay, while female employees are given the option of taking enhanced maternity, leave at full pay.

Hextall, who works with the Roads Armed Policing Team argued that had he been a female constable taking enhanced maternity leave, he would have been entitled to receive a full salary during his time-off. Hextall’s second child was born on 29th April 2015, and his shared parental leave was taken from 1st June to 6th September, during which time he received £139.58 per week.

Maternity leave and pay policy at Leicestershire’s Police means that female employees who are entitled to statutory 52 weeks ordinary maternity leave and take it, also receive an additional occupational maternity benefit of a further 18 weeks leave at full pay. While Hextall’s contract included the right for enhanced maternity pay, he was not permitted to take it due to being male.

The Employment Tribunal dismissed the claim of direct and indirect sex discrimination as well as for equal pay. Hextall appealed the decision and brought the case to the EAT in January 2018.

The employment judge stated that the problem with the case was not whether paying the statutory rate only for shared parental leave was a disadvantage for men, but rather that shared parental leave was paid at a lesser rate than maternity leave.

The case will be remitted to a different Employment Tribunal.

Employment Partner at CMS, Anthony Fincham commented that this case has opened the door to further indirect discrimination claims. We can expect to see further claims, and the only way to handle this issue is to seek a consistent approach when dealing with different benefits.

Sarah Jackson, chief executive officer at Working Families stated that the decision did not change the judgement that men on shared paternal leave cannot be compared to women on maternity leave. Working Families had intervened to ensure that special protections were afforded women on maternity leave, and that these conditions continue.

Jackson went on to say that enhancing maternity pay and not shared parent pay may well give rise to an indiscrimination claim by fathers because they do not have the choice that women have, to remain on higher pay rates. Neither could they opt in to shared parental pay.

Working Families spokesperson stated that the issue of indirect discrimination has not been resolved yet. A further tribunal decision is needed for clarity.

Nevertheless, employers should be aware of the results of enhancing one type of pay and not another. Employers should be prepared to go beyond the minimum pay for shared parental leave, as this option makes it more realistic for families.

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