The Supreme Court has refused permission to appeal in the Case of Chief Constable of Leicestershire v Hextall. As such, the decision that the Court of Appeal handed down back in 2019 which dealt with this question is final.
Hearing two appeals together, Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall, the Court of Appeal determined that it was not discriminatory to pay men on shared parental leave less than an enhanced rate that was paid to women on maternity leave. They held that this applied equally regardless of whether it was expressed as a claim for direct discrimination, indirect discrimination or equal pay claim.
Direct discrimination occurs where someone is treated less favourably than others because of a protected characteristic they possess, a protected characteristic of someone they are associated with or a protected characteristic they are thought to have (regardless of whether this perception is actually correct). Under normal circumstances, proven acts of direct discrimination cannot be defended. However, there are some exceptions where it will be allowed, one of which is the “special treatment afforded to a woman in connection with pregnancy or childbirth” which the Court of Appeal was satisfied was wide enough to include enhanced maternity pay.
Furthermore, the minimum of 14 weeks’ leave required by the Pregnant Workers Directive is not enough to change the position after 14 weeks. The Court of Appeal reasoned:
“The predominant purpose of such leave is not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner.”
As such, men on parental leave and women on maternity leave are not in comparable positions for the purposes of Equality Act 2010.
The Court of Appeal held that where there is a contractual difference in shared parental leave pay and enhanced maternity pay, it would be properly characterised as an equal pay claim. However, the sex equality clause implied into employment contracts by the Equality Act 2010 does not apply where discrimination is specifically excluded in the Act which, in the case of pregnancy and maternity, it is:
“A sex equality clause does not have effect in relation to terms of work affording special treatment to women in connection with pregnancy or childbirth.”
As was held in respect of direct discrimination, the Court of Appeal concluded that this was wide enough to include enhanced maternity pay. As a result, the was no claim for equal pay as it is specifically excluded by the Act.
Indirect discrimination claims are excluded where they would be equal pay claims but for a specific exception, which was the case in these appeals as set out above. Accordingly, the indirect discrimination claims could not be brought either.
The end result was that all of the claimants’ grounds of appeal were dismissed and as such, all claims were therefore dismissed. In light of the refusal to allow an appeal to the Supreme Court, this decision remains binding.
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