Is It Discriminatory That Only Women Can Qualify for Maternity Leave?

Is it discriminatory that only women can qualify for maternity leave and that men often have to manage on reduced pay if they take time off to care for newborn children?

The Employment Appeal Tribunal (EAT) considered that vexed question in a guideline case.

The case concerned a male police officer who took shared parental leave (ShPL) after the birth of his second child. During his absence, he received the statutory rate of pay per week. Had he been a female officer, he would have been contractually entitled to take maternity leave on full pay for 18 weeks. Identical arrangements prevailed in police forces across the country.

The officer’s complaint of indirect sex discrimination was rejected by an Employment Tribunal (ET) on the basis that the proceedings were a bold and ingenious attempt to gain for male police officers a right to payment of a kind of paternity pay at the same rate as enhanced maternity pay that is paid to female officers who take time off after giving birth. Although the majority of officers who took ShPL were men, it was also in some circumstances available to women.

In upholding the officer’s challenge to that ruling, the EAT found that the ET had erred in law in concluding that, because the identified provision, criterion or practice (PCP) was applied to men and women equally, there could be no indirect discrimination. The ET had also misdirected itself in finding that the PCP did not put male officers at a particular disadvantage in comparison with their female colleagues.

The officer’s lawyers had argued that the disadvantage to male officers was obvious, in that it was more difficult for them to take leave on reduced pay. The overwhelming majority of female officers in the same circumstances suffered no such disadvantage in that the availability of leave on full pay made their choices very much easier.

The EAT directed a rehearing of the officer’s case by a freshly constituted ET.

If you are concerned that your maternity pay and ShPL pay arrangements could not be objectively justified in the face of a claim of indirect sex discrimination, contact us for advice.

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