Sex Discrimination – SEX DISCRIMINATION – Indirect
VICTIMISATION DISCRIMINATION – Detriment
A father who wished to take shared parental leave so that his wife could go back to work claimed direct sex discrimination in not being entitled to pay at the higher maternity pay rate for 12 weeks after the 2 weeks compulsory maternity leave but only that paid for shared parental leave.
The Employment Tribunal erred in failing to consider or have regard to the purpose of maternity leave with pay which is the rationale for domestic law provision for maternity leave and pay and the European legislation which it implements. That purpose is for the health and wellbeing of a woman in pregnancy, confinement and after recent childbirth. The Employment Tribunal erred in holding that the circumstances of the Claimant father were comparable within the meaning of the Equality Act 2010 section 23(1) to those of a woman who had recently given birth as both had leave to care for their child. Such a finding fails to have regard to the purpose of maternity leave and pay. A mother will care for her baby but that is a consequence not the purpose of maternity leave and pay. Whether and for how much there is an entitlement to pay depends upon and is inseparable from the type of leave taken. Shared parental leave is given on the same terms for men and women. Hofmann v Barmer Ersatzkasse [1985] ICR 731 and Betriu Montull v Instituto NSS [2013] ICR 1323 considered. Further the ET erred for similar reasons in holding that the payment to a woman who had recently given birth and was on maternity leave at a higher rate than that given to parents of either sex on shared parental leave the purpose of which was different, the care of the child, did not fall within Equality Act 2010 section13(6)(b). Eversheds v Legal Services De Belin [2011] ICR 1137 considered.
Appeal from finding of direct sex discrimination allowed. Finding set aside.
Appeal from three findings of victimisation under Equality Act 2010 section 27 dismissed. Decision in respect of one finding of victimisation was not Meek-compliant. Appeal allowed in respect of this claim of victimisation allowed. Claim of victimisation remitted for hearing before the same Employment Tribunal, if practicable.
Judges:
Slade DBE J
Citations:
[2018] UKEAT 0161 – 17 – 1104
Links:
Jurisdiction:
England and Wales
Employment
Updated: 13 April 2022; Ref: scu.609161