Shared parental leave allows parents to share leave between them for the purposes of caring for their new baby. The mother shortens her maternity leave entitlement and shares it with her partner.
In the recent case of Chief Constable of Leicestershire Police v Hextall, Mr Hextall and his partner took the decision to share her maternity leave. His employer, Leicestershire Police had a policy of allowing 18 weeks of maternity leave to be paid at full pay. However, they only paid the statutory rate for parents taking shared parental leave.
Mr Hextall took 14 weeks of shared parental leave and was only paid statutory pay. He brought a case at the Employment Tribunal against Leicestershire Police, arguing that had he been a woman he would have been entitled to the enhanced pay. He claimed that this amounted to discrimination on the grounds of his sex and a breach of equal pay rights.
Indirect sex discrimination occurs when an employer has a provision, criterion, or practice which applies to everybody, but results in one sex being put at a disadvantage. This type of discrimination can, however, be justified in certain circumstances. Equal pay requires men and women to receive equal pay for doing equal work.
The Employment Tribunal found that Leicestershire Police’s decision to pay women enhanced maternity pay and men statutory shared parental pay was neither direct nor indirect sex discrimination, and also rejected the equal pay claim. Mr Hextall appealed.
The case went on to be considered by the Court of Appeal. They decided that there was no discrimination because the nature of the leave was different and a man taking shared parental leave for childcare reasons was different to a mother taking maternity leave for health and safety purposes. This meant that the equal pay claim also could not succeed because there was a reason why a woman could be afforded special treatment, because of her being on maternity leave.
Mr Hextall launched an appeal to the Supreme Court, however, the Supreme Court refused permission to allow it to progress any further. This means the law remains as determined by the Court of Appeal, namely that men and women can be paid at different rates for maternity and shared parental leave.
This will provide welcome clarification to employers who have grappled with this issue since the introduction of shared parental leave and is now the final word on the matter.
For further information and to find out how we can help you, please contact our Employment Team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.