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EAT determined that failure to enhance Shared Parental Leave might be indirect sex discrimination

8 May 2018

In a further case dealing with the issue of Shared Parental Leave (SPL), the Employment Appeal Tribunal has decided that paying fathers and mothers different rates of pay whilst on maternity leave or shared parental leave (SPL) respectively can amount to indirect discrimination provided that the father can clearly demonstrate a particular disadvantage when being paid at a lower rate.

In this case, the claimant argued that the disadvantage being faced was a ‘financial disincentive’ compared to women who are encouraged to take maternity leave. Although the Employment Tribunal initially rejected this claim, the Employment Appeal Tribunal (EAT) found that the Tribunal had misunderstood the disadvantage that the claimant was seeking to rely on and, thereby, had not considered the correct pool of employees for analysis. The case has therefore been referred back to the employment tribunal for reconsideration.

Although this does provide slightly more guidance on the question of indirect sex discrimination, for now, it is a case of ‘watch this space’ for a final ruling.

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