The Supreme Court has this week declined to hear the appeal in what had been the highly anticipated case of Hextall v Chief Constable of Leicestershire Police. Mr Hextall had sought permission to appeal a decision of the Court of Appeal from last year, which found that it was not sex discrimination for his employer to provide only the statutory rate of Shared Parental Leave (“SPL”) pay to men, while providing enhanced maternity pay to women.
In May 2019, the Court of Appeal had heard Hextall and a similar case (Ali v Capita Customer Management Ltd). In Ali, the argument was that the operation of these different rates of pay was direct discrimination and, in Hextall, that it was indirect discrimination. The Court of Appeal rejected both claims. On direct discrimination, the court held that the correct comparison was between a man and woman taking SPL, not between a man taking SPL and a woman taking maternity leave. On indirect discrimination, they said that the claim should properly be brought as an equal pay claim and, as such, it was bound to fail due to the rule that more favourable treatment terms are permitted in connection with pregnancy or childbirth. Even if it could be brought as an indirect discrimination claim, the correct pool for comparison purposes was a pool of people (men and women) taking SPL and excluding women taking maternity leave as, in the court’s view, women taking maternity leave are in a materially different position from men and women taking SPL. Based on that pool, where men and women would be paid the same rate of SPL pay, there was no disadvantage to men.
As a result of the Supreme Court’s refusal to hear the Hextall appeal, and since the Ali case was not appealed, the Court of Appeal’s decision stands as the law. Employers should therefore not be liable to a sex discrimination (or equal pay) claim if they operate an enhanced maternity pay policy and a statutory rate SPL pay policy.