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 ET dismissed the claim saying:

"we do not accept that a woman on maternity leave getting enhanced maternity pay is a valid comparator for a man on shared parental leave getting shared parental leave pay; the relevant PCP does not put men at a particular disadvantage when compared with women."

The Claimant appealed.

The EAT allowed the appeal. 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.