Shared Parental Leave Update – EAT finds no Direct Discrimination but opens the door to Indirect Discrimination

Today saw the second half of the much anticipated judgments in:

  • Capita Customer Management v Ali & Working Families (Intervenor) UKEAT/0161/17
  • Hextall v Chief Constable of Leicestershire Police & Working Families (Intervenor) UKEAT/0139/17

concerning the question of whether it is sex discrimination to pay men on shared parental leave at a lower rate than mothers on maternity leave.

In Capita v Ali the EAT has confirmed that it is not direct sex discrimination for an employer to make different payments for maternity leave and for shared parental leave.  This is because the two types of leave are not comparable – one is mainly provided for the health and safety of a mother, the other is purely for childcare reasons.

However in Hextall v Leicester Police the EAT found that a tribunal erred in its approach to the question of pools and disparate impact.  It has remitted the issue of indirect discrimination for reconsideration, although it has not had to deal with the vital question of objective justification, because that was not an issue in the appeal. 

Therefore there is no complete answer on disparate impact and indirect discrimination and no guidance at all on whether a differential between shared parental leave and maternity leave can be justified.

Click here to view the case note.

The Capita v Ali judgment can be viewed here.

The Hextall v Leicester Police judgment can be viewed here.

Andrew Burns QC and Lucinda Harris appeared for Capita Customer Management Ltd.

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