Maternity, paternity and adoption rights
Introduces maternity and paternity rights, shared parental leave, and adoption rights in the UK
Selected cases on family-friendly rights, including time off for dependents, maternity and paternity leave, and discrimination during pregnancy
Here we list a selection of key cases on family-friendly rights, providing a summary of the decision and implications for employers.
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Ali v Capita Customer Management and Leicestershire Police v Hextall |Court of Appeal |24 May 2019
EWCA Civ 900
Issue: Equality of treatment on shared parental pay
An employee’s wife had post-natal depression and he asked to take shared parental leave (SPL) so she could return to work and he could care for the baby. His female colleagues on maternity leave were entitled to 14 weeks at full pay and he asked for the same treatment. When he was told he could only get payment at the statutory rate, he submitted a grievance and then a tribunal claim, alleging that it was direct sex discrimination to provide full pay to mothers on maternity leave but not to fathers on SPL.
The Employment Tribunal decided he had been directly discriminated against as a mother taking maternity leave during the same period would have received full pay. The tribunal rejected the employer’s argument that an exception to sex discrimination under the Equality Act 2010 applied. The tribunal concluded that a caring role is not exclusive to the mother so equality of treatment required the same pay for carrying out the same role. But this judgment was overturned in the Employment Appeal Tribunal, a decision subsequently upheld by the Court of Appeal.
In the Hextall case, a male police officer unsuccessfully argued that he should receive full pay for SPL, the tribunal finding that the correct comparator was a female officer on SPL rather than on maternity leave. This decision was later endorsed by the Court of Appeal and the claim dismissed.
Snell v Network Rail |Employment Tribunal | October 2016
ETS/4100178/2016
Issue: Equality of treatment on shared parental pay
In this case, both parents worked for Network Rail and intended to take SPL to look after their child. The mother was entitled to 26 weeks’ fully paid shared parental pay, and the father only entitled to the statutory rate. Following a grievance, he submitted employment tribunal claims for direct and indirect sex discrimination on the basis that there was no material difference between a father and a mother taking shared parental leave. The employer eventually conceded that its policy relating to enhanced shared parental leave was indirectly discriminatory. He was awarded over £28,000 including loss of earnings and £6,000 injury to feelings.
EAT/0438/13
Issue: Time off for dependents – failure to contact employer as soon as reasonably practicable
An employee’s contract said he must tell his line manager, or leave a message on the company's absence line about any absences due to illness or injury by no later than 30 minutes after he should have started work and thereafter keep in regular contact about the length of absence.
The employee was under a final written warning as a result of previous attendance issues. He and his partner were expecting a baby imminently and because of some concerns they went to hospital on several occasions without informing the employer until after the event. Immediately after the last absence his partner was admitted to hospital to have the baby and the employee failed to make contact for some two days.
After this the employee was called to a disciplinary hearing and dismissed. He brought a claim for automatically unfair dismissal.
The Employment Appeal Tribunal (EAT) held that the employee would not succeed in his claim because he had failed to notify his employer of his absences as soon as reasonably practicable.
The EAT considered what is reasonably practicable. This had to be determined by reference to the particular fact in each case. The employee said that his phone battery had run out which was why he didn’t call the employer. However he could have used a pay phone or asked his father to contact them as he had done previously. It would have been reasonable to leave his partner and the baby for a few minutes to make a quick phone call.
ET/3203504/13
Issue: Additional paternity leave
An employer introduced a generous enhanced maternity package whereby women on maternity leave got 100% of their basic pay for 52 weeks. This was to aid recruitment and retention of female employees to meet a diversity target of employing 25% women. Additional paternity leave (APL) was the relevant statutory system which applied at the time and male employees on APL only received the standard statutory rate of paternity pay.
The claimant’s wife returned to work and he took just four months off to care for his son. He claimed he should receive 100% of pay during his APL to achieve parity with his female colleagues on maternity leave. He claimed direct and indirect sex discrimination.
The employment tribunal held that neither claim would succeed. The claimant was not entitled to the enhanced benefits because it was permissible to give special protection to women in connection with pregnancy and childbirth under both UK and EU legislation. With regard to direct discrimination he was not treated less favourably because if a female employee had taken APL (for example in a same sex relationship) she would also have received statutory paternity pay. With regard to indirect discrimination the employer could justify its policy as a proportionate means of achieving a legitimate aim. The maternity policy promoted recruitment, retention and development of women and this aim of recruiting more women to its male dominated workforce was enough to objectively justify the policy of paying men and women differently.
(Please note: This case was based on the system of 26 weeks’ APL which was introduced in April 2011. It was abolished in April 2015 and has subsequently been replaced with shared parental leave.)
Case C-167/12
Issue: Maternity leave – surrogacy
An employee (known simply as C.D to protect her privacy) had a child through the use of a surrogate mother, but her employer refused to give her maternity leave. Through induced hormone treatment, she began breastfeeding the child just a few hours after the child’s birth. The employer offered a career break, reduced hours, unpaid leave and extended holiday, but refused to give her maternity leave even though she had been employed for more than ten years.
Although the employer later agreed to allow her paid leave under their adoption leave policy, the employee brought claims of sex and associative pregnancy and motherhood discrimination with regard to the original refusal of her request. In addition, she claimed that she had been subject to detriment by reason of pregnancy and maternity and by reason that she had sought to claim maternity leave.
It appears that there is a gap in the UK (and possibly the EU) legislation dealing with the rights of a mother of a child born to a surrogate mother. The employment tribunal asked the European Court of Justice (ECJ) if UK law is compatible with two European directives. These directives, the Pregnant Workers Directive and Equal Treatment Directive (Recast) do not expressly refer to surrogacy. Similarly the current UK parental leave laws as yet make no provision for surrogacy similar to those for adoptive parents.
In surrogacy cases the situation is difficult as the mothering role is shared between two women who need the protection of the law at the times relevant to them:
The Advocate General gave an opinion which was followed by an ECJ judgment. As well as this case, the judgment also covered another separate case, Z v A Government Department (Case C-363/12, 26 September 2013, ECJ). Both cases concern employers refusing applications for paid leave on the basis that the intended commissioning mother was not pregnant and had not adopted the child. Were these intended mothers discriminated against under EU law by being denied maternity leave rights?
Briefly, the ECJ found that the mothers had not been discriminated against and ruled that:
UKEAT/0348/13
Issue: Pregnancy/maternity discrimination
A job centre employee took ordinary maternity leave of six months followed by six weeks’ annual leave. However, during the maternity leave she was diagnosed with post-natal depression and did not return to work. She was eventually dismissed because she had been absent for a long time and she was unlikely to return to satisfactory attendance within a reasonable time. She claimed direct sex discrimination and/or pregnancy and maternity discrimination. The employee argued that her dismissal was unfair and that it was either direct pregnancy or sex discrimination.
The Employment Appeal Tribunal found in favour of the employer and the discrimination claims failed. However the unfair dismissal claim succeeded as the employer had been found not to have followed its own policies and procedures.
The direct sex discrimination claim failed because an employer is entitled to take into account absence after the end of the period of maternity leave in a decision to dismiss. A dismissal after the end of maternity leave does not amount to sex discrimination just because the cause of the absence is related to childbirth.
The pregnancy discrimination claim also failed because any discrimination needs to fall within the protected period between the beginning of pregnancy and the return to work from maternity leave. As the dismissal was some months after the end of the protected period this claim failed as well.
The unfair dismissal compensation was reduced by 50%, as she would probably still have been dismissed if the employer had acted fairly and reasonably because the ill health continued three months after dismissal.
XA141/10
Issue: Associative pregnancy discrimination
An employee believed that he and his girlfriend had been dismissed because of his girlfriend’s pregnancy. They both worked at the same factory and he claimed that he was dismissed for helping her carry heavy items. The employer contended that they were both dismissed for not processing scallops quickly enough. The employee brought a claim of pregnancy associative discrimination under the Sex Discrimination Act 1975 Section 3A which provides protection against discrimination during a woman’s pregnancy and maternity leave. An employment appeal tribunal dismissed the claim and he appealed.
The Employment Appeal Tribunal held, dismissing the appeal, that section 3A did not cover associative pregnancy discrimination. The employee’s claim came under the Pregnancy Workers Directive and the recast Directive and neither of these directives gave protection against associative pregnancy discrimination.
The matter was eventually appealed to the Scottish Court of Session, which decided to refer the following two matters to the ECJ for a preliminary ruling. With reference to the Equal Treatment Directive is it unlawful discrimination to treat a man:
[2011] IRLR 448
Issue: Redundancy – maternity leave cover
A male solicitor was one of two associates working in an office as part of a real estate Team. The other associate was a woman on maternity leave. It was decided that one of the two associates in the team would have to be made redundant. Both employees were scored against various performance criteria, including the length of time between the completion of a piece of work and the receipt of payment from the clients.
When the criteria were applied, the female associate was still on maternity leave and therefore had no current client files which could be measured so she was given the maximum score for this criterion. As a result of the scores the male employee was selected for redundancy. However if the female employee had not been given the artificial maximum score, there would either have been a tie or she would have scored less and would have been the one selected for redundancy.
The male solicitor raised a grievance followed by a sex discrimination claim, suggesting alternative approaches, which included measuring the female employee using the actual figures available before she went on maternity leave. However the employer felt that that their approach was legally necessary in order to ensure that the female employee did not lose out by her maternity absence and to avoid the risk of a sex discrimination claim from her.
The Employment Appeal Tribunal held that in this case treating a woman on maternity leave more favourably in the redundancy scoring exercise constituted sex discrimination against the man in her selection pool.
UKEAT/0108/10/ZT
Issue: Pregnancy related discrimination
Ms Nixon was a business development manager at a firm of solicitors. She was in a relationship with one of the firm’s male solicitors. However, during the firm’s 2007 Christmas party, Ms Nixon and the male IT manager were seen kissing each other before leaving the party together.
After the party Ms Nixon went on holiday, then fell ill and was on sick leave. When she returned to work in January she told the managing partner that she was pregnant. The managing partner told the HR manager, who openly questioned the paternity of Ms Nixon’s baby. Within hours Ms Nixon and her pregnancy were the subject of workplace gossip and rumours. She requested a transfer to a different office, which was refused. Eventually, after a period of sick leave, she raised a grievance. While this was pending she was told to return to work immediately, which she was not prepared to do. The employer did not pay her for the whole of February and March. She resigned, subsequently claiming sex and pregnancy discrimination, harassment and unfair constructive dismissal.
Eventually the matter reached the Employment Appeal Tribunal (EAT). The EAT agreed with the employment tribunal that Ms Nixon had been constructively and unfairly dismissed. The employer had broken the implied term of trust and confidence by refusing to consider her request for a transfer, by deducting her wages, and by not hearing the grievance properly.
However, the EAT did not agree with the tribunal that Ms Nixon’s compensation award should be reduced by 90%. Although some of her conduct had been inappropriate, especially in her attempts to force a compromise of the claim, only behaviour before the dismissal should be taken into account, not any behaviour after that.
Finally the EAT decided that there had been sex and pregnancy discrimination, and harassment. The failure to allow the employee to transfer to a different office was discrimination on these grounds and the gossip was intimidating, hostile, degrading or humiliating, and constituted harassment that was not prevented by the employer.
C-104/09
Issue: Breastfeeding leave
This case concerned a Spanish scheme where all employed mothers were eligible for maternity leave, but employed fathers were not entitled to the leave unless the child’s mother was also an employee. The European Court of Justice held that this difference in treatment was sex discrimination. It commented that making it harder for fathers to qualify for the leave than mothers was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a secondary parental role.
UKEAT/0544/09
Issue: Redundancy – maternity leave
An insurance consultant working in her employer’s London office went on maternity leave. While she was on leave, the employer decided to close some of its offices (including London) and transfer work to four new call centres in Cheltenham, Burnley and Northern Ireland. All consultants were guaranteed a job in the new call centres if they were willing to relocate. Details of the alternative jobs were sent to the consultant but she showed no interest in any of them and she was made redundant. She brought a claim of automatic unfair dismissal, contending that she had been ill after the birth of her child and that was why she had not read the information on the new jobs.
The employment tribunal identified four jobs in Cheltenham which were potentially suitable for the consultant, but she had decided that she would not relocate there. Therefore the jobs were not suitable for her and the employer was not obliged to offer them to her. Her claim was dismissed, but she appealed claiming that the tribunal was wrong in its interpretation of Regulation 10 of the Maternity and Parental Leave Regulations 1999. The Regulation provides that if an employee becomes redundant during her maternity leave she is entitled to be offered any alternative suitable job that arises before her employment ends. The job must be suitable and appropriate for the employee to do in the circumstances and the place and other terms and conditions not substantially less favourable than her previous contract. She argued that she should have been offered one of the new jobs instead of just being given the details.
The Employment Appeal Tribunal dismissed the appeal, ruling that under Regulation 10 the work was suitable and appropriate for the consultant to do in the circumstances, but the location in Cheltenham was less favourable than if she had continued to work in London. Both elements of the statutory test had to be considered together and not as a two-stage process. None of the jobs in Cheltenham were therefore suitable alternatives and the employer had no obligation to offer them to the consultant.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
Introduces maternity and paternity rights, shared parental leave, and adoption rights in the UK
Explores maternity and paternity provision in the workplace and employers’ attitudes towards legislative changes due to come into force in 2017