Case law: Employer action under policy that disadvantaged employee on maternity leave was not directly discriminatory
Employers should ensure that policies affecting an employee with a protected characteristic, such as pregnancy, are not directly discriminatory provided they do not affect all such employees and/or other employees who do not share that protected characteristic.
This update was published in Legal Alert - June 2017
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An employer's policy treated employees as 'leavers', so they were removed from the employer's employment records if they had been absent without pay for three months.
An employee on maternity leave was not entitled to statutory maternity pay. After three months, during which she had received no pay, she was removed from the employer's records in accordance with the policy. She was due to leave anyway but the removal meant her termination date was shown as 14 June 2013, whereas her employment would not have come to an end until nearly a year later, on 13 May 2014. This was to have dire consequences, causing her to lose her benefits and, ultimately, the accommodation in which she was then living with her children. She claimed unlawful direct discrimination on grounds of her pregnancy.
It is direct discrimination on grounds of pregnancy if an employer treats a pregnant employee less favourably:
- because of something arising in consequence of the employee's pregnancy, and
- the employer:
- cannot show that the treatment is a proportionate means of achieving a legitimate aim
- knows, or could reasonably be expected to know, that the person is pregnant
The employer argued that the employee's treatment was not because of something arising in consequence of her pregnancy because there were other pregnant employers (who were absent with pay) who were not treated less favourably.
The Employment Appeal Tribunal agreed. It said the employer had not imposed a 'blanket policy or criterion that was inherently based on or necessarily linked to pregnancy or maternity'. If it had, 'all women who went on maternity leave (not just those who did not qualify for SMP and thus were not being paid) would have had their names deleted from the Respondent's records', and everyone affected by the policy would have been an employee on maternity leave.
- Employers should ensure that policies which affect employees with protected characteristics, such as pregnancy, are not directly discriminatory – although the policies may not be directly discriminatory if they do not affect all such employees and/or also affect other employees who do not share that protected characteristic
Case ref: Interserve FM Ltd v Tuleikyte UKEAT/0267/16/JOJ
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