16 May 2017

Appeal Tribunal determines approach to be taken when deciding the reason for the treatment in pregnancy discrimination cases.

In the case of Interserve FM v Tuleikyte (UKEAT/0267/16/JOJ) the Claimant went on maternity leave in June 2013. In October 2013 a manager recorded her as having left employment on 14 June 2013. This was due to the company’s policy which stated that employees absent without pay for three months or more would be treated as having left their employment. As the Claimant was not eligible for maternity pay she was absent without pay. The manager erred since the Claimant’s employment actually ended on 13 May 2014. The Claimant brought a claim for pregnancy/maternity discrimination as a result.

The Employment Tribunal decided that the act of recording the Claimant as having left employment with effect from 14 June 2013 was an act of maternity discrimination. It reasoned that as the Claimant had been treated unfavourably because she was on maternity leave, the treatment was inherently discriminatory. There was no requirement to look any further (for example as to why the Respondent had acted as it did).

The Respondent appealed arguing that the Tribunal approached the matter in the wrong way. The Employment Appeal Tribunal upheld the appeal and issued important guidance in dealing with pregnancy/maternity discrimination cases. The fundamental question in a direct discrimination case is what the reasons/grounds for the treatment are. That is a fact sensitive inquiry. The case law in this area notes that there are two different types of cases:

• 'criterion cases’ - where the criterion is inherently based on or linked to the protected characteristic or where its application amounts to the reasons for the treatment complained of. In these cases there is no need to look any further.
• 'reason why cases’ – in all other cases the Tribunal requires to consider the mental processes of the putative discriminator and decide what the real reason for the treatment was.

The Employment Appeal Tribunal decided that this approach requires to be taken in pregnancy/maternity discrimination cases too.

In this case, the Respondent's policy had two criteria: the individual had to be absent for three months and the individual had to be without pay for three months. Both had to be considered together as part of the policy. As the policy was seemingly neutral and applied in the same way to those on maternity leave or absent for other reasons, this was not a ‘criterion case’ but a ‘reason why case’. This means that the Tribunal would require to consider what the real reason for the treatment was. The case was therefore remitted to the Tribunal to consider this point.

Going forward therefore employers should ensure that they carry out an impact assessment in relation to their policies in this area. Consideration needs to be given to the how workplace policies affect those with a particular protected characteristic, whether there are inherently discriminatory criteria at play and if not, whether there is a risk that the reason for the particular treatment could potentially be because of the protected characteristic. These types of cases can also give rise to indirect discrimination claims and employer should ensure that there is clear documentary evidence as to the legitimate objective being pursued and be clear that the way in which this is achieved is proportionate, i.e. reasonable and necessary.

As ever in this area, expert employment law advice is recommended given the complexity of the legal rules in this area. Your BTO employment expert can help.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.