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Shared Parental Leave - Is It Discriminatory If Different to Maternity Leave?

on Friday, 07 June 2019.

It is not discrimination for an employer to have enhanced maternity leave benefits but not enhanced shared parental leave (SPL) benefits. This is the decision in respect of direct discrimination claims and now also indirect discrimination claims.

We reported extensively on the cases of Hextall v Chief Constable of Leicestershire Police and Capita Customer Management Ltd (CCM) v Ali and you may have heard us talk about them at employment update seminars. At the Court of Appeal, both cases were heard at once as they revolved around the same points of law. Please refer to our previous reports for the background to these cases and the EAT decisions.

Court of Appeal Decisions


  • Direct discrimination

The Court dismissed Mr Ali's appeal, finding that when considering whether a man on SPL can be compared to a woman on maternity leave, there is a material difference between them. The Court emphasised the different reasons for the leave. The main purpose of SPL is childcare whereas maternity leave has a host of additional reasons, such as recovery from childbirth and breastfeeding. As such, Mr Ali could not rely on a woman on maternity leave as a comparator and so his direct discrimination failed.


  • Equal terms

The Court determined that Mr Hextall's claim was actually an equal terms claim and should not have been considered by the ET or EAT as an indirect discrimination claim. An equal terms claim is akin to an equal pay claim, but instead of a difference in pay, Mr Hextall wanted the same contractual benefits as his female comparator.  

Due to the special nature of police employment contracts (which are largely governed by legislation and regulations), the Court determined that in Mr Hextall's case family pay policies had contractual status. However, any claim based on equality of terms was bound to fail because the Equality Act specifically allows for special protections and benefits to be provided to women in connection with pregnancy and childbirth.

This element of the decision is likely to have limited impact on other employers as SPL benefits are most unlikely to be determined to have contractual status outside of the special nature of employment in the police force.

  • Indirect discrimination

Although determining that Mr Hextall had not brought an indirect discrimination claim, the Court went on to consider the claim in any event in order that there be caselaw authority on the issue.

The Court found that an indirect discrimination claim failed for similar reasons to that of the direct discrimination claim; namely when looking at whether an employer's SPL policy places men in a disadvantaged pool, it is not appropriate to compare them to women on maternity leave. The appropriate pool of comparison is women on SPL and as they would receive the same pay as men, the claim fails.

Best Practice

This case should be reassuring for all employers - confirming that you do not have to amend SPL policies to provide the same enhanced benefits as are given to employees on maternity leave. The EAT had also left the question of indirect discrimination open so it is most beneficial to also now have a positive authority on this count.

However, watch this space. Both claimants have confirmed that they will be appealing to the Supreme Court.

For more information, please contact Michael Halsey in our Employment Law team on 020 7665 0842, or complete the form below. 

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