Employment Law Advice: What Pay Am I Entitled to on Shared Parental Leave?
Is paying mothers and fathers different rates discrimination?
A recent UK court case has shone a light on the complexities of gender discrimination in the context of employment law. The Hextall v Leicestershire Police case arose when a police officer opted to take shared parental leave following the birth of his child, but was paid only the statutory rate, as opposed to the enhanced rate that a mother receives when taking maternity leave.
In accordance with informal national policy currently in place for the payment of such leave, Leicestershire Police paid Hextall only the statutory rate for parental leave and not the enhanced rate which a mother on maternity leave would receive.
Hextall espoused that this policy leaves fathers at a disadvantage when taking leave compared to women, as it acts as a disincentive for the taking of such leave and, unlike mothers, fathers do not have the alternative option of taking maternity leave.
In accordance with these disadvantages, Hextall argued that paying mothers and fathers unequal rates for parental leave constituted unlawful indirect sex discrimination.
The Employment Appeal Tribunal concluded that the failure to pay a male police officer taking shared parental leave the same rate as his female counterpart taking maternity leave could constitute indirect sex discrimination.
The case in question focussed on two main facets of employment law: indirect sex discrimination and equal pay.
Prior to the Employment Tribunal, Leicestershire Police had countered that Hextall’s actual claim pertained to issues of equal pay and was hence subject to the Equality Act 2010. This essentially prohibits any complaint regarding equal pay that is made in relation to women being afforded favourable treatment in matters connected to either pregnancy or childbirth.
This highly technical judgement honed right in on the most detailed complexities of employment law. Legislation with reference to gender equality enforces the equal treatment of men and women in the workplace, but this legislation expressly excludes the equal treatment of mothers and fathers in the same context. As a result of the application of this exclusion, the failure to pay a father on shared parental leave the same rate as a mother taking maternity leave does not constitute direct sex discrimination.
There is, however, no such provision in the instance of indirect sex discrimination, which is thus much harder to define. The judgment handed down in Hextall v Leicestershire Police would now appear to suggest that there is a gap in the exclusion in the equality legislation and that, in certain circumstances, an employer would be unable to give special rights to a mother if these rights are not then given to a father in similar circumstances, as this would then constitute indirect sex discrimination.
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