Shared parental pay case: Supreme Court refuses permission to appeal
Nick Jones, specialist employment solicitor and Head of Gregg Latchams’ employment team, considers the case of Chief Constable of Leicestershire v Hextall and the Supreme Court’s recent decision to refuse permission to appeal.
Mr Hextall, a police officer, brought a claim for sex discrimination against his employer, the Chief Constable of Leicestershire, by reason of their policy to pay those on shared parental leave less than women on maternity leave during an equivalent period.
Under the Equality Act 2010 (“the Act”), it is potentially unlawful to discriminate, directly or indirectly, against a person because of a protected characteristic. There are nine protected characteristics, including a person’s sex.
The Act also deals with equal terms of work. It implies a “sex equality clause” into employment contracts to modify less favourable terms between men and women doing the same work.
An employment tribunal rejected Mr Hextall’s claim on the grounds that women on maternity leave were not valid comparators for men on shared parental leave and men had not been put at a disadvantage by the Chief Constable’s policy.
The Employment Appeal Tribunal granted Mr Hextall permission to appeal. The Court of Appeal determined that Mr Hextall’s claim was in fact an equal terms claim rather than a sex discrimination claim. However, Mr Hextall could not succeed in such a claim because the “sex equality clause” does not have effect where a female comparator’s more favourable terms relate to special treatment arising from pregnancy or childbirth. Mr Hextall was precluded by the Act from bringing a sex discrimination claim for the same reason.
Mr Hextall appealed to the Supreme Court. The Supreme Court have refused permission to appeal and so the matter will not be considered further by the courts.
