Hextall v Chief Constable of Leicestershire Police (Working Families intervening)

The mere fact that a provision, criterion or practice (PCP) applies equally to men and women does not preclude an indirect discrimination claim. Rather, the correct test is whether the PCP causes a particular disadvantage to the protected group compared with others.

To test disparate impact the tribunal must select a logically relevant pool consisting of those affected by the PCP. The pool differs from the direct‑comparison exercise and should include persons who have an interest in taking the leave the PCP governs.

A claim that seeks equalisation of different and non‑corresponding contractual terms (for example enhancing a shared parental pay term to match a distinct maternity pay term) is not necessarily an equal pay claim excluded by Schedule 7 Part 1 paragraph 2 of the Equality Act 2010.

The appellant, a male police constable, challenged payment at statutory shared parental pay rates while women on maternity leave received enhanced occupational maternity pay. The Employment Tribunal dismissed his claims of direct and indirect sex discrimination and equal pay. The appellant appealed only the dismissal of indirect sex discrimination. The respondent cross‑appealed contending the complaint was an equal pay claim precluded by Schedule 7 Part 1 paragraph 2 of the Equality Act 2010. The Employment Appeal Tribunal heard argument on classification of the claim, the correct PCP, the composition of the comparator pool, and causation of the particular disadvantage. The central issue was whether the tribunal erred in law in its approach to the indirect discrimination claim (see paras [59]; [62]; [83]).

1. (Overall disposition) Appeal allowed in part. The cross‑appeal is dismissed. The ET's dismissal of the indirect sex discrimination claim is set aside and the claim is remitted for rehearing before a differently constituted Employment Tribunal (see para [Disposal]).
2. (Classification) The ET correctly categorised the appellant's claim as one of discrimination and not an equal pay claim. The appellant relied on a PCP of paying only the statutory rate for shared parental leave. That PCP is distinct from the separate contractual entitlement to enhanced maternity pay. The exclusion in Schedule 7 Part 1 paragraph 2 therefore did not prevent a discrimination claim (see paras [25]; [28]; [Discussion on the Cross‑Appeal]).
3. (Elements of indirect discrimination) The tribunal must identify: (a) the PCP; (b) the particular disadvantage alleged; and (c) a logically relevant pool for comparison. The PCP and the particular disadvantage are distinct: the PCP is the rule; the particular disadvantage is the effect said to flow from it (see paras [61]; [62]; [Discussion and Conclusion]).
4. (Pool selection) In testing disparate impact the pool should ordinarily comprise all workers affected, or potentially affected, by the PCP. Exclude only those who have no interest in the advantage or disadvantage at issue. The exercise for choosing the pool in an indirect claim is different from selecting a single comparator for direct discrimination (see paras [40]–[41]; [Discussion and Conclusion]).
5. (Causation and contextual factors) A tribunal must determine whether the PCP itself causes the comparative particular disadvantage. Contextual features may be causative or explanatory but the tribunal must address causation explicitly. The ET erred by adopting its direct‑comparison reasons to reject women on maternity leave from the indirect discrimination pool and by failing to assess the disparate impact relied upon by the appellant (see paras [59]; [62]–[63]; [Discussion and Conclusion]).
6. (Remedy) Because the ET failed properly to identify and decide essential elements of the indirect discrimination claim, the matter is remitted for rehearing. The cross‑appeal that the claim was an equal pay claim is dismissed (see Disposal).

• Employment Tribunal (first instance) – Judgment sent 24 August 2016: claims of direct and indirect sex discrimination and equal pay dismissed (see Judgment).
• Employment Appeal Tribunal – Appeal heard; cross‑appeal dismissed; indirect discrimination dismissal set aside and remitted for rehearing before a differently constituted ET (see Disposal).