1 May, 2018
The EAT has today handed down judgment in Hextall v (1) Chief Constable of Leicestershire Police (2) Working Families (intervening) (1.5.18, UKEAT/0139/17/DA), allowing the appeal on all grounds against the Employment Tribunal’s dismissal of Mr Hextall’s indirect sex discrimination claim.
In the linked case of Capita Customer Management Ltd v (1) Ali (2) Working Families (intervening) (11.4.18, UKEAT/0161/17/BA), Mrs Justice Slade (who heard both appeals) held that a failure to enhance pay for Shared Parental Leave to a rate equivalent to that for contractual maternity pay, did not amount to direct sex discrimination. In Hextall however, the issue was whether the Force’s Shared Parental Leave policy (designed to mimic the statutory entitlements applicable to civilian employees) was indirectly discriminatory in providing a right only to the statutory minimum rate of Shared Parental Leave pay.
The Employment Tribunal had erred in applying a direct discrimination comparison when determining the indirect discrimination claim: it was wrong to exclude women who might take maternity leave from the pool. Most female officers with a present or future interest in taking leave to care for a child can choose full pay via maternity leave (if they are or will be the birth mother), whereas men cannot.
The Force’s cross-appeal – to the effect that there had been no jurisdiction to hear the claim because it should have been brought as an equal pay claim under Chapter 3 of Part 5 of the Equality Act 2010 - was dismissed. The Force did not appeal against the tribunal’s rejection of its objective justification defence. Slade J remitted the matter to a differently constituted Tribunal for re-hearing.