Summary In this decision on flexible working decision periods, the Employment Appeals Tribunal (EAT) had to decide if the Tribunal was correct in deciding that the three-month decision-making period under the flexible working rules had been extended by retrospective agreement, and therefore the claim before the Employment Tribunal (ET) was premature and as such outside of its jurisdiction to hear.    Law Part 8A of the Employment Rights Act 1996 ("ERA") and the Flexible Working…

The Employment Appeal Tribunal (EAT) has held that a man on shared parental leave (SPL) being paid less than a woman on adoption leave (AL) was not sex discrimination. Direct sex discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ sex compared with others in like-for-like circumstances. Direct discrimination can never be justified, no matter how well-intentioned the motive. To bring a successful claim, a claimant needs to establish a comparator,…

The Employment Appeal Tribunal (EAT) has considered whether a policy that removed contracted rest days due to the taking of parental leave was indirectly discriminatory against women. Employees who qualify have a right to take up to 18 weeks' unpaid parental leave in total for the purposes of caring for a child, which is usually limited to four weeks per year. This applies equally to both male and female workers. Under the Equality Act 2010, Indirect sex discrimination occurs when a provision…

Summary In a conjoined appeal with Ali v Capita Customer Management, the Court considered whether enhancing maternity pay policies, but not shared parental leave policies, was sex discriminatory. Section 66 of the Equality Act 2010 operates to automatically insert a sex equality clause in contracts of employment which have the effect of inserting corresponding terms into a contract where their terms are less favourable than the terms in place for an employee of the opposite sex. Facts Under…

In a straight-forward decision, the Court of Appeal confirmed that it is not direct sex discrimination to offer enhanced maternity pay but only statutory shared parental pay. Whilst this decision may bring relief to many organisations who offer these types of family friendly leave and can continue to do so lawfully, there are cultural calls for family friendly pay to be equalised to ensure all working parents are not required to make child caring decisions based on financial incentives or…

Summary Note - this decision has appealed to the Court of Appeal. Their decision is available here. The EAT has confirmed there is no sex discrimination when an employer offers an enhanced pay rate during maternity leave, whilst only providing fathers with statutory pay under shared parental leave policies. Statutory shared parental pay is paid at the rate set by the government each April, currently £145.18 for 2018/19, although some employers may choose to offer enhanced pay. Facts…

Summary Was a failure to review a dismissal decision, taken before the employee informed of her pregnancy, discrimination on pregnancy grounds and an automatic unfair dismissal? Under s99 of the Employment Rights Act 1996 and Regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, a dismissal will be automatically unfair where the reason, or principal reason, for the dismissal is connected to the employee’s pregnancy. Pregnant employees are also protected against…

Summary An employment tribunal has decided that it was unlawful to pay mothers an enhanced pay rate during maternity leave, while only paying a father looking after a new-born baby statutory pay under shared parental leave arrangements.   Statutory shared parental pay is paid at the lower rate of statutory maternity pay, although employers may choose to offer enhanced pay.   The claimant in this case took two weeks’ paternity leave following the birth of his baby. His wife developed post…

Summary This is the first case on discrimination over shared parental leave. The employment tribunal awarded a father almost £30,000 because his employer refused to pay his shared parental leave at the same rate as his wife who was employed by the same company. Under the shared parental leave (SPL), parents can share up to 50 weeks’ leave and 37 weeks’ statutory pay in the first year of their child’s life. In order to take SPL, the mother must bring her maternity leave to an end and convert…

Summary This decision, believed to be the first to consider the legal status of childcare vouchers provided through a salary sacrifice scheme, established that they are ‘remuneration’ for maternity leave purposes.   During maternity leave women are entitled to benefit from all the terms and conditions of employment which would have applied to them had they been at work, except remuneration. The employer in this case stipulated that those joining its childcare voucher scheme must withdraw…

Summary This case illustrates how the right to a suitable alternative vacancy applies when a redundancy situation arises during a restructuring exercise. The EAT analysed the right of women on maternity leave to be offered a ‘suitable available vacancy’ (a job that is both suitable and available) in a redundancy situation. Here the failure to do this amounted to unfair dismissal but was not discrimination. Facts The employer in the case decided that two positions, including the…

Summary Paying men on additional paternity leave the statutory minimum, while paying women on maternity leave their full basic pay, was not discriminatory – but future shared parental pay cases may not reach the same conclusion.   When a mother has ended her maternity leave and returned to work, the father of the child (or the mother’s spouse or civil partner) can take between two and 26 weeks’ additional paternity leave from 20 weeks after the birth of the child.   When additional…

Summary The claimant lodged claims of unfair dismissal, direct sex discrimination and/or pregnancy and maternity discrimination after she was dismissed when she did not return from maternity leave for six months after her intended date of return due to post-natal depression.   Under the Equality Act 2010 (section 13) direct discrimination occurs where someone is treated less favourably because of a protected characteristic than others were, or would have been, treated in the same…

Summary In CD v ST, the claimant, who had used a surrogate mother in order to have a child, brought pregnancy and maternity discrimination claims after being refused an application for paid leave equivalent to maternity, paternity or adoption leave.   It has never been in doubt that surrogate mothers are entitled to pregnancy and maternity rights. But the position of the woman who intends to become the baby’s mother under a surrogacy arrangement has been the subject of recent European case…

Summary The claimant, who returned from maternity leave to find that her job as a mental health nurse in a prison was no longer available, claimed this breached the Maternity and Parental Leave Regulations 1999. The employment tribunal found it was not reasonably practicable for her to return to the same job, but because her contract described her as a ‘prison officer’, it must be suitable and appropriate for her to return to that role.   Under current maternity rules, during the first six…

Summary The claimant, who became the mother of a baby born to another woman as a result of a surrogacy arrangement, argued that UK law should be interpreted in accordance with the pregnant workers directive after her employer initially refused to grant her leave under its adoption policy.   There is nothing in UK or European legislation to say that a woman who becomes a mother by using a surrogate arrangement should be entitled to the same rights as pregnant women. The issue has not…

Summary An employee selected for redundancy while absent on parental leave, claimed discrimination as she was assessed on the basis of her last appraisal while other employees were assessed on the basis of their most recent performance evaluation. The CJEU ruled that  identical selection criteria must be applied to all employees.   This case concerned an employee, Nadezda Riezniece, who was selected for redundancy while absent on parental leave. Other employees at her organisation, who…

Summary Is a dismissal for redundancy following maternity leave discriminatory? Facts The employee worked part-time as a marketing manager within a team of four. She had moved to part-time working following the birth of her first child. When she became pregnant with her second child, she took her entitlement to one year's maternity leave.   During her maternity leave, the organisation did not recruit anyone to cover her work; instead her duties were absorbed by the other three members…

Summary Women on maternity leave must not be treated more favourably than other employees in redundancy selection pool. Facts Eversheds needed to cut costs and proceeded with redundancies. In one pool it had two solicitors - De Belin, a 45-year-old male, and a 40-year-old female who was on maternity leave - and needed to select one of them for redundancy.   Eversheds used a matrix for the redundancy selection process. This assessed a range of abilities including financial performance,…

Summary Employee dismissed unfairly for taking time off to care for dependants. Facts Employees are entitled to take reasonable time off to deal with emergencies that arise relating to dependants (Employment Rights Act 1996). This time off is unpaid. Employees must not suffer any detriment if they exercise this right.   In this case, Clarke arrived half an hour late for work because his childcare arrangements had failed and he had to make alternative arrangements at the last minute. He…

Summary No requirement to pay job-related allowances when pregnant employee moved to different job. Facts Parviainen worked as an air steward for Finnair. She became pregnant and was moved to work as ground staff following a health and safety risk assessment of potential harm to her and her unborn child.   While working as ground staff, she was entitled to her basic salary and the ground staff allowances. This meant that her salary dropped by about one third in comparison to the salary…

Summary Requirement to carry out risk assessment for pregnant employee depends on three pre-conditions. Facts O'Neill was a primary school teacher. There had been concerns about a variety of aspects of her teaching and conduct, and the school had taken a decision to proceed with disciplinary action.   O'Neill then informed the school that she was pregnant, and took a period of sick leave relating to her pregnancy. When she returned to work she faced disciplinary action (unrelated to…

Summary Does disruption to childcare arrangements have to be “sudden” in order to trigger the right to time off for dependants? Facts Harrison, who worked part-time, had two young children who were looked after by a childminder when she was at work. On 8 December 2006, the child-minder informed Harrison that she would be unable to look after the children on 22 December.   Harrison attempted to find a replacement child-minder but by 12 December, had failed to find one. The next day she…

Summary Worker not ‘pregnant’ while undergoing IVF treatment Facts The European court was asked to rule on the meaning of "pregnant worker" for the purpose of the EC Pregnant Workers' Directive. In March 2005, Mayr underwent fertility treatment in the form of in vitro fertilisation (IVF). On 8 March 2005, Mayr's eggs were fertilised. On 10 March 2005, Flockner advised Mayr that she was dismissed with effect from 26 March 2005.   Mayr lodged a claim against Flockner arguing that her…

Summary Employee’s dismissal not due to taking paternity leave Facts Atkins agreed with his line manager that he would take a period of paternity leave when his daughter was born. A more senior manager was not aware of the arrangement.   When the baby was born, Atkins asked to take one week's paternity leave. The senior manager agreed, but only on the basis that Atkins was contactable during the week.   The baby was born on 7 March and Atkins started his paternity leave immediately…

Summary When does the obligation on an employer to carry out a risk assessment for a pregnant employee arise? Facts Nnachi was employed as a care support worker from 19 September 2005. The employment tribunal stated that she worked in an environment which carried a number of risks, from physical aggression from clients, to manual lifting and carrying. On 9 May 2006 Nnachi informed her employer that she was pregnant, although through the grapevine her employer was aware that she was…

Summary Refusing a part-time working request after maternity leave was indirect sex discrimination Facts Shaw worked as an area sales executive. She started maternity leave in April 2004. In November 2004 she wrote to her employer asking if she could work part-time when she returned to work. She also informed the employer that she could no longer work more than 100 miles from home and that she would no longer be able to stay away overnight.   Her request to work part-time was refused…

Summary Right to return to the same job Facts The case concerned a primary school teacher who wanted to resume work in exactly the same job she had occupied before the start of her maternity leave, in other words, teaching the same class. This was against a background of the school's policy of moving teachers to different classes every two years. EAT The EAT identified three determinative criteria: the nature of the work its capacity the place of work.   The employee's…

Summary Employee with two weeks’ service dismissed for taking a day off work when his partner was taken ill Facts Palen was recruited as a delivery driver in a small company. During his second week of employment, he took a day off work because his partner had been taken ill. On his return the next day, the employer told him that a small company could not afford to let people take time off in that way. Palen was dismissed.   Although he did not have the requisite length of service…

Summary Contractual bonus payments need not be paid during ordinary or additional maternity leave Facts Asda's annual attendance bonus scheme was based on profits. The bonus was payable to all employees with at least six months' service by a certain date. The bonus was pro-rated to reflect part-time employment and absence, including maternity leave. It was described as "discretionary" but everyone who qualified for it received it.   Hoyland's bonus was pro-rated to reflect her absence…