Mr B Price v Powys County Council [2021] UKEAT/0133/20/LA; March 31, 2021

This article was first published in the Discrimination Law Association (DLA) briefings, Volume 73, July 2021.

Facts

• Mr B Price (BP) was employed by Powys County Council (the Council). BP’s wife was expecting a baby and the couple decided that BP would care for it at home while Mrs Price would return to work after two-weeks’ compulsory maternity leave.
   
• In order to make a decision on their joint income if his wife were to receive two-weeks’ compulsory maternity leave (ML) pay and they split any Shared Parental Leave (SPL) entitlement, BP made enquiries about the Council’s SPL policy, requesting a monthly breakdown of the pay he would receive if he were to take 37 weeks’ SPL.
   
• The Council’s SPL policy was to pay an amount equivalent to Statutory Maternity Pay to employees taking SPL, whereas those on adoption leave (AL) were entitled to full pay. After some delay, BP was informed that he would only receive pay at the statutory rate for maternity pay.
   
• BP lodged claims at the Employment Tribunal (ET) for direct and indirect discrimination on the grounds of gender. He contended that the Council’s policy was directly discriminatory in that employees on statutory ML and on AL were entitled to pay at higher rates during their leave periods than those on SPL.
   
• The indirect discrimination claim was made on the basis that the delay in processing his pay entitlement disadvantaged men.

Employment Tribunal 

(1) The direct discrimination claim – pay disparity

BP relied on two comparators for his direct discrimination claim: the first being a female worker receiving ML pay, the second being a female worker receiving AL pay. The ET considered whether these comparators were in materially different circumstances.

In relation to the first comparator, the ET was referred to Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police [2019] EWCA Civ 900; Briefing 942, which addressed the differences between SPL and ML pay. The tribunal determined without discussion that, based on these cases (which had been heard together), BP could not ‘establish that he has been treated less favourably or would have been treated less favourably than this comparator’.

In relation to the second comparator, BP argued that as neither a male employee on SPL nor a female employee on AL undergo childbirth, a female employee on AL was an appropriate comparator. The Council argued that AL was materially different because:

1. AL could be taken at any age before maturity of the adopted child
2. SPL could only be taken with the partner’s agreement, whereas AL did not need the consent of the other adopter
3. SPL could be ‘dipped in and out’ of, and
4. The adopter had to deal with third parties including for screening, interviews, and counselling.

For these reasons, the ET concluded that a female employee on AL was materially different to a male employee on SPL, adding that AL ‘was in part compulsory, whereas SPL was entirely optional’ and AL could begin before placement with the child.

The correct comparator was a female worker who had applied for SPL and this comparator would have been paid at the same rate as the equivalent male employee.

(2) The indirect discrimination claim – processing delay

The provision, criterion or practice (PCP) under discussion was the processing time of 13 weeks for BP to receive notice of his SPL pay entitlement. The Council argued that the delay had been an error rather than a PCP. The tribunal decided that while it was ‘clearly very unsatisfactory’ for BP to be put in such a difficult position, the delay had been the result of genuine errors and not a PCP.

The ET therefore dismissed both claims.

Employment Appeal Tribunal (EAT)

BP’s appeal to the EAT proceeded on two grounds relating to the pay disparity claim, namely that the:

1. ET had erred in that it failed to have regard to the underlying purpose of AL, which was the same as or similar to that of SPL, namely the facilitation of childcare
2. ET’s reasons for stating there was a material difference between BP and the comparator were ‘either immaterial or irrelevant’.

The underlying purpose of AL

BP referred to the Court of Appeal’s reasons in Ali for the material difference between ML and SPL, which were that the predominant purpose of ML was ‘not childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth and not shared by the husband or partner’.

By contrast, BP submitted, the predominant purpose of both AL and SPL is childcare and therefore directly comparable. The joint purpose of AL and SPL, he argued, is to ‘allow parents to be at home to care for the child and develop their bond’.

BP also argued that there was a similar element of choice in both SPL and AL; for SPL, parents could choose to allocate the period of leave; for AL, the choice involved the period they are matched with the child and which one of the couple would be the adopter.

The EAT rejected the argument that the predominant purpose of AP and SPL was facilitating childcare. It held that the purpose of AL went beyond just the facilitation of childcare; rather it included ‘forming a parental bond, becoming a family, and the taking of steps to prepare and maintain an appropriate and safe environment for the adopted child’. Other differences included the fact that adoption could take place when the child is older than an infant, and before the child is placed with the adopter.

The EAT also stated that the element of choice in AL was ‘different in character’ to that of SPL because the choice of who would be the adopter was made by both parents whereas ‘once that choice is made and one of them is elected the adopter, the adopter then has the right to curtail AL so as to enable the adopter’s partner to take [SPL]’.

Irrelevant reasons for material difference

The EAT looked at each of the points the ET made to differentiate SPL and AL. The first point was that ‘AL was “in part compulsory”, whereas [SPL] was entirely optional’. The EAT agreed with BP that AL is not compulsory and that the ET erred in relying on this factor, but decided that this did not vitiate the ET’s conclusion overall.

For each of the other points the EAT did not consider the factors referred to by the ET to be immaterial or irrelevant.

As a result, the EAT decided that the ET has been correct to reject the comparator of a female on AL.

The correct comparator, it stated, would be a female on SPL, who would receive the same pay as BP and there was therefore no prima facie discriminatory treatment. The appeal was dismissed.

Comment

The outcome of this judgment is to extend the reasoning in Ali to a comparison of SPL with AL as well as ML. That case was heavily relied on and the tribunals at both stages felt bound to transpose much of the reasoning of the Court of Appeal to this case.

However, much of the reasoning that purports to distinguish between AL and SPL is less clear cut than suggested. There are clear differences between AL and SPL listed and discussed at length in these judgments, but the determination that the predominant purpose of both is not ‘the facilitation of childcare’ seems narrow-minded. Differentiating AL from SPL by saying that a key purpose of AL is 'forming a parental bond’, as if parents on SPL are not forming an initial bond with their child, is a weak argument. So is the argument that AL is different to SPL because AL can be claimed when the child is older than an infant – although there will be slightly different needs at different ages of the child’s development, it is unclear why caring for a slightly older child is not also ‘ facilitation of childcare’.

The argument that AL can be taken before the placement of the child means that the predominant purpose is more than the facilitation of childcare because at that point ‘there is no child to look after’, is equally narrow. Childcare is not an exercise that must happen only in the presence of the child – shopping for the child, preparation of food, and other activities where the child does not have to be in the room are necessary for the provision of care.

Whereas a key purpose of ML is recovery from childbirth, there is no similar clear-cut distinction in the judgments in this case. This said, even if the tribunals had taken a broader approach to the purposes of these types of leave, it seems unlikely that BP would have succeeded in proving sex discrimination because the types of leave in question can be taken by male or female parents.

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