Equal Pay Act – Sex Discrimination – Indirect
The Claimant claimed indirect sex discrimination under provisions in the Respondent Police Force in that the only option for men taking leave after the birth of their child is shared parental leave (‘SPL’) at the statutory rate of pay whereas women have the option of taking maternity leave (‘ML’) on full pay. The Employment Tribunal did not err in holding that the claim was for indirect sex discrimination and not for equal pay within the meaning of Equality Act 2010 (‘EqA’) section 66. The exclusion in EqA Schedule 7 Part 1 paragraph 2 in relation to terms of work affording special treatment for women in connection with pregnancy or childbirth did not apply. Cross-appeal dismissed. The ET erred in adopting their reasons for rejecting women on maternity leave as a comparator for a direct discrimination claim for the purposes of the indirect discrimination claim. The identifying of a pool for testing disparate impact of a PCP on men and women in materially indistinguishable circumstances is a different exercise from that in a direct discrimination claim. Further the ET erred in failing to base their decision on the disparate impact relied upon : fathers have no choice but to take SPL at the statutory rate of pay whereas mothers have the option of ML at full pay. Appeal allowed. Claim of indirect sex discrimination remitted for rehearing to a differently constituted ET.
Citations:
[2018] UKEAT 0139 – 17 – 0105
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616891