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Enhancing maternity pay but not parental pay could be indirectly discriminatory

Makbool Javaid

In Hextall v Chief Constable of Leicestershire Police the ET rejected Hextall’s indirect discrimination claim that a provision, criteria or practice (PCP) applied by the Force meant that the only option for men taking leave after the birth of their child is shared parental leave at the statutory rate of pay whereas women have the option of taking maternity leave on full pay. The EAT held that the ET had erred in its approach. The basis of the claim is that the rate of pay for shared parental leave is the same for both father and mother, but it has a disparate impact on fathers because they, as opposed to mothers, have no other choice and are, or would be, deterred from taking leave to care for a child. The ET did not correctly identify the correct pool for comparison. The test should have been: when considering police officers (men or women) with a present or future interest in taking leave to care for their newborn child, are men placed at a particular disadvantage by the PCP? The claim was therefore remitted for rehearing before a differently constituted ET.

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