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

A challenge to the statutory rate for shared parental leave may be pursued as indirect sex discrimination where it challenges that shared-leave term, rather than seeking to insert or equalise a maternity-pay term. The pregnancy and childbirth exception in Equality Act 2010 Schedule 7 did not therefore arise.

For indirect discrimination under section 19, a PCP may apply equally to men and women yet place one sex at a particular comparative disadvantage. The tribunal must identify the asserted disadvantage precisely and select a logically relevant pool of persons with an interest in taking leave to care for a newborn child. It must not transplant the direct-discrimination comparator analysis into that pool exercise.

The claimant, a male police constable, took shared parental leave following the birth of his child and received statutory shared parental pay. A woman on maternity leave could receive 18 weeks’ occupational maternity pay at full pay.

The Employment Tribunal dismissed claims for direct and indirect sex discrimination and equal pay. The claimant appealed only the dismissal of the indirect-discrimination claim. The respondent cross-appealed the finding that the claim was one of discrimination rather than equal pay. The central issue was whether the PCP of paying only the statutory rate for shared parental leave placed men at a particular disadvantage compared with women.

1. Appeal allowed; cross-appeal dismissed. The claim challenged the contractual term governing shared parental pay. It did not seek to modify or add a corresponding maternity-pay term under section 66 of the Equality Act 2010. The Employment Tribunal was therefore right to classify it as a discrimination claim. Schedule 7 Part 1 paragraph 2 did not arise.
2. Section 19 required the Tribunal to identify the particular disadvantage said to result from the PCP and then determine whether men suffered a particular comparative disadvantage. A PCP’s equal application to men and women does not answer that question; facial neutrality is characteristic of indirect discrimination.
3. The alleged disadvantage had to be distinguished from the PCP itself. On the formulation advanced on appeal, fathers had no alternative to statutory-rate shared parental leave if they wished to take leave to care for a newborn child, whereas mothers could choose maternity leave at full pay. The Tribunal had not assessed that asserted comparative disadvantage.
4. The Tribunal erred in importing its direct-discrimination conclusion that a woman on maternity leave was not an individual comparator. Identifying a logically relevant pool for the disparate impact of a PCP is a different exercise. The pool should include police officers with a present or future interest in taking leave to care for a newborn child, and exclude persons with no such interest. Further findings were needed on its size and composition and on any material differences relevant to the section 19 analysis.
5. The dismissal of the indirect sex-discrimination claim was set aside and that claim was remitted to a differently constituted Employment Tribunal for rehearing.

• Employment Appeal Tribunal: appeal allowed, cross-appeal dismissed; the Employment Tribunal’s dismissal of the indirect sex-discrimination claim was set aside and remitted.
• Employment Tribunal: judgment sent to the parties on 24 August 2016. It dismissed the claimant’s direct and indirect sex-discrimination and equal-pay claims.