SOLICITORS QUESTIONS THE SUCCESS OF SHARED PARENTAL LEAVE A

S there is no legal requirement for employers who provide enhanced maternity leave to provide enhanced shared parental leave as well, it is questionable whether the introduction of shared parental leave has been a success.

A recent report by the BBC confirmed that the take-up of shared parental leave may be as low as 2%, prompting a government campaign to promote it.

However, the case of Hextall, heard by the Employment Appeal Tribunal (EAT) at the beginning of 2018, may open the door to claims from male employees that failure to provide the same enhanced shared parental leave, in line with that of maternity leave, could be indirectly discriminatory against men.

In Hextall v Chief Constable of Leicestershire Police the EAT re- visited a tribunal ruling in which in which Mr Hextall, a serving police constable and new dad, was told that being denied the opportunity to take shared parental leave on full pay was neither direct nor indirect sex discrimination.

Mr Hextall claimed indirect sex discrimination on the basis that, had he been a female police constable on maternity leave, he would have received his full salary for the period, whereas he was entitled only to statutory pay.

The EAT found that the tribunal had incorrectly used the same rationale for rejecting women on maternity leave as a comparator for a direct discrimination claim when assessing the indirect discrimination claim.

The EAT remitted the decision to a new employment tribunal to reconsider, and examine whether the practice, if found to be discriminatory, can be justified. We are therefore waiting for further guidance on this point.

In practice this case leaves open the possibility that an indirect discrimination claim could succeed – although employers will be able to try and justify it. However, cost alone isn’t likely to be enough! The safest option is to be consistent in terms of enhancements of both maternity and shared parental leave payments.