The Court of Appeal in (1) Capita Customer Management Ltd v Ali & (2) Chief Constable of Leicestershire v Hextall [2019] EWCA Civ 900, has overturned the Employment Appeal Tribunal and held that employees do not unlawfully discriminate against men when when paying them less for shared parental leave than they pay women when taking enhanced maternity pay as part of maternity leave. Such claims are not sex discrimination claims but equal terms claims, to be brought under the Equal Pay Act 1970, which are bound to fail because they relate to terms of work affording special treatment to woman in connection with pregnancy of childbirth. An appeal to the Supreme Court is possible.

The Employment Appeal Tribunal has handed down judgment in the appeal case of Hextall v Leicestershire Police UKEAT/0139/17/DA. Mr Hextall is a police officer who took Shared Parental Leave. However, under the informal national policy that exists at the current time in relation to the payment of such leave, he was paid only at the statutory rate and not the enhanced rate paid to mothers taking maternity leave.

Mr Hextall argued that that policy put men at a particular disadvantage compared to women because it acted as a financial disincentive to their taking such leave where mothers had the alternative option of taking maternity leave. As such, he said, it constituted unlawful indirect sex discrimination. Hextall is linked to another (non-police) case, Capita v Ali UKEAT/0139/17/DA.

In short, the Employment Appeal Tribunal decided that a failure to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave potentially constitutes indirect sex discrimination. Jonathan Davies represented Leicestershire Police in both the employment tribunal and the Employment Appeal Tribunal.