Case law on family-friendly rights

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.

Implications for employers

• Employees can take a reasonable amount of unpaid time off work to deal with family emergencies.
• The unpaid leave is in order for the employee to put arrangements in place.
• If an employer dismisses an employee for time off to deal with an emergency with a dependent that employee can claim automatically unfair dismissal.
• However employees must tell their employer the reason and expected length of their absence, as soon as it is reasonably practicable.
• Employees must use any means to contact their employer, even if distracted by an emergency such as childbirth.
• If an employee ignores their communication obligations the right to claim automatically unfair dismissal is lost.
• Generally employers cannot move straight to dismiss an employee in similar cases over an inadequately communicated emergency absence. However in this particular case there had already been previous final written warnings which enabled the dismissal to take place.
• Failure to make contact as soon as is reasonably practicable may trigger a disciplinary process.
• Employers should not dismiss employees who fail to notify the employer as soon as reasonably practicable on the first occasion as they will face a claim for unfair dismissal. However employers may commence a disciplinary process for repeated failures to notify absences properly.

​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.

Implications for employers

(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.)

• Some employers, with a high percentage of male staff, who offer generous enhanced maternity packages to attract women may be able to objectively justify offering those enhanced maternity packages even though men are indirectly discriminated against as a result.
• Any employers who pay only the statutory rate of pay to male employees on shared parental leave (applying to parents of children due to be born or placed for adoption on or after 5 April 2015) may be able to use similar arguments to defend sex discrimination claims, although there is no guarantee.
• A maternity policy which places men at a disadvantage and is potentially indirectly discriminatory may be objectively justified by the need to recruit and retain women although each case will depend on its own facts.
• Employers who wish to offer enhanced maternity pay but only statutory shared parental leave pay may therefore be able to justify this as being a proportionate means of achieving a legitimate aim as long as they do not use cost saving alone as a factor to rely upon.
• However this decision was only a tribunal decision and may be decided differently in any similar Employment Appeal Tribunal cases. It was also made under the old system before shared parental leave came into force.

​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 surrogate mother who carries the child requires protection as a pregnant worker or woman who has recently given birth.
• The intended commissioning mother, who was not pregnant herself but has an infant in her care and possibly also breast feeds it, needs protection when she starts caring for the child and assumes the role of mother. From that point onwards she is in a situation comparable with that of a biological mother.
• The key question is whether the intended mother with a baby from a surrogate mother has a statutory right to maternity leave if she immediately starts to care for the baby. The employer contended there had been no infringement of the law as these rights are reserved for women who have given birth to, or adopted, a child.

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:

• The Pregnancy Workers Directive does not protect commissioning mothers who do not have to have maternity leave pursuant to the directive, even if they breastfeed the baby following the birth.
• The refusal to grant maternity leave to the commissioning mother does not constitute direct or indirect discrimination on grounds of sex.
• A commissioning mother who has had a baby through a surrogacy arrangement cannot be subject to less favourable treatment related to her pregnancy, given that she has not been pregnant with that baby.
• The ECJ also stated that Member States are not precluded from introducing regulations which are more favourable to commissioning mothers who have had babies through a surrogacy arrangement.

Implications for employers

• Surrogacy laws are very complicated for employers to understand.
• As the UK law stands, the surrogate mother carrying the baby is covered by existing pregnancy and maternity leave provisions.
• However the intended (commissioning) mother does not currently have maternity rights if involved surrogacy arrangements in the UK.
• The government is extending maternity rights to parents through surrogacy under the Children and Families Act 2013 and the new rights will come into force in 2015.
• UK law will therefore soon apply equal rights for parents through surrogacy – both straight and gay couples will have paid time off work to take care of their newborn surrogate children.
• Until the law changes the European Court of Justice has given some previously conflicting opinions in various cases concerning whether European mothers through surrogacy should be entitled to maternity leave, but seem to have concluded that they are not entitled.
• In a case from Ireland, a mother who worked as a teacher with a child born through surrogacy in California was not discriminated against by having been denied the right to maternity leave. The difference may be explained by the fact that Ireland does not yet allow for surrogacy, whereas UK law does.
• Until the new UK legislation come into force in 2015, the ECJ decision does not give support to any mothers denied leave who wish to bring discrimination claims against their employers (although previous cases do).
• The intended biological father is automatically recognised as the legal parent so would presumably be entitled to paternity leave if helping with caring for the child.
• It seem contradictory that an adoptive mother with no biological connection to an adoptive child benefits from paid leave, but an intended mother in a surrogacy arrangement is not.
• As far as other parental rights are concerned, from 1 October 2013 one of the intended parents commissioning a surrogacy can be recognised as the legal parent when a child is born, if the relevant consents are in place.
• The surrogate who gives birth to the child remains the legal mother upon birth until a Parental Order is in place.
• Where the surrogate is married or in a civil partnership, the surrogate’s partner is the second legal parent unless there is appropriate evidence to for the partner not consenting.
• Where the surrogate is single or their partner did not consent to treatment, one of the intended parents can be the second legal parent of the child when born.
• Pending the new UK law, best practice employers should consider offering an employee with new surrogate children maternity leave in the same way as an adoptive parent.

​​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.

Implications for employers

• Employers should treat employees with post natal depression with sensitivity.
• Although it did not arise in this case, post-natal depression may constitute a disability leading to a disability discrimination claim especially if the employer failed to make reasonable adjustments.
• Under the Equality Act 2010 direct discrimination occurs if an employee is treated less favourably because of a protected characteristic such as maternity or pregnancy or gender.
• Pregnant women and new mothers have extra protection, beginning at the start of the pregnancy and ending at the end of maternity leave. This is known as the ‘protected period’. Discrimination against a woman occurs if she is treated unfavourably during the protected period because of the pregnancy, pregnancy-related illness, or because she is exercising, or has exercised maternity leave rights.
• Employers must not take into account absence due to pregnancy-related illness when making a decision about an employee’s employment during the protected period.
• However it appears that a pregnancy-related illness can be the subject of dismissal procedures once the protected period comes to an end.
• Any period of absence for an illness connected with childbirth or pregnancy after maternity leave may still be sex discrimination depending upon whether any similar period of sickness of a man would have been treated differently. However it is not sex discrimination to dismiss for a maternity related absence after the end of maternity leave, if a man with the same absences would have been treated in the same way.
• An employee dismissed for post-natal depression will be treated unfavourably for a pregnancy-related illness and can claim discrimination under the Equality Act 2010 only if the illness occurs between the beginning of the pregnancy and the end of maternity leave.
• Adverse treatment related to other issues such as absences for chronic menstrual problems or testicular cancer can be the subject of sex discrimination claims if the employee can show that they have been treated less favourably than an appropriate comparator of the opposite sex.

​​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:

• less favourably on the grounds of a woman’s pregnancy? or
• less favourably on the grounds of the pregnancy of a woman who is the claimant’s partner, or otherwise associated with him?

Implications for employers

• Employers should avoid treating anyone who is pregnant less favourably and should also avoid treating anyone who helps or is associated with a pregnant employee less favourably.
• Although certain aspects of the law concerning discrimination against those associated with pregnant women are unclear, a careful employer will avoid any claims arising altogether.
• If a claim arises under the old law an employer may be able to establish that anyone discriminated against because of their association with a pregnant woman is not protected.
• Whether the Equality Act 2010 now covers maternity and pregnancy discrimination by association is still not entirely clear.
• Although the claim was brought under the Sex Discrimination Act 1975, the decision of the ECJ will be relevant to claims under the Equality Act 2010 as well.
• The position under the Equality Act 2010 is confusing. While the Act does protect against most forms of associative discrimination, the rules on associative pregnancy discrimination are muddled.
• Associative discrimination is explicitly excluded for the protected characteristic of marriage and civil partnership, but is not excluded for pregnancy and maternity. So on the one hand this suggests that associative discrimination claims related to maternity and pregnancy can be made. Confusingly for employers on the other hand it appears that claims for discrimination related maternity and pregnancy are meant to be completely covered just by sections 17 and 18 of the Act. However, these sections do not cover associative discrimination claims.
• Until further clarification, employers should assume that the Equality Act 2010 does cover associative discrimination for maternity and pregnancy, as employers do not want expensive claims. In any event to discriminate against someone because of their association with a pregnant woman is bad practice, even if it not clearly covered by the law.
• If an employer is faced with a claim of treating a man less favourably on the grounds of a woman's pregnancy then (until the decision of the ECJ and the Court of Session) the employer could try and defend themselves using the Employment Appeal Tribunal’s decision that this is not covered by the associative discrimination provisions.

​[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.

Implications for employers

• Employers face considerable difficulties in situations which require using redundancy scoring to choose between a man and a woman on maternity leave. Employers potentially will face the risk of a claim of sex discrimination from either employee.
• The starting point is that employers are under a high obligation to protect employees who are pregnant or on maternity leave under the Equality Act 2010.
• If an employer dismisses an employee on maternity leave without offering a suitable and alternative vacancy then the dismissal is automatically unfair.
• An employee who is made redundant on maternity leave is entitled to be offered a suitable available vacancy with her employer (or an associated employer) with terms and conditions which are not substantially less favourable.
• Female employees effectively do have priority over other employees who are at risk of redundancy for other available vacancies, even if the woman is on maternity leave.
• However the obligation to offer suitable alternatives to women on maternity leave, is different from giving those women excessive protection form selection in the first place.
• If the criteria used by employers leans too far in favour of the woman on maternity leave then sex discrimination claims can arise from a man selected instead of the woman.
• If a man brings a sex discrimination in such circumstances the Equality Act 2010 provides that no account should be taken of ‘special treatment’ afforded to women in relation to pregnancy or childbirth.
• However the ‘special treatment’ accorded to a woman must be a proportionate means of achieving the legitimate aim of compensating the woman for the disadvantages occasioned by her pregnancy or her maternity leave.
• The ‘special treatment’ afforded to women must therefore go no further than what is reasonable and proportionate.
• Favourable treatment in the application of redundancy criteria will be disproportionate if there are less discriminatory alternative measures that could be adopted, such as (in this case) measuring performance at a time when both candidates were still at work.
• Employers should always lay a paper trail to show why they applied the criteria they did.

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.

Implications for employers

• Employers must behave sensibly and rationally when personal relationships arise in the workplace.
• If a manager is involved in a situation, then another senior employee should deal with matters.
• Employers should take steps to prevent or contain harmful office gossip.
• Requests for transfers in such situations must be considered seriously or there may be a breach of the implied term of trust and confidence.
• Grievances should be taken seriously and be dealt with swiftly in accordance with the employer’s procedures.
• Employers are potentially liable for gossip and discriminatory comments concerning or related to a protected characteristic, such as pregnancy. Pregnant employees are still protected even if the conduct is only related to the pregnancy.

​​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.

Implications for employers

• Employers should carefully review their maternity and paternity schemes in the light of the imminent new paternity rights in the UK.
• Fathers who take extended paternity leave from April 2011 onwards could argue for for the same rights and benefits as women who take additional maternity leave.
• In addition to their existing two-week entitlement, the father taking paternity leave will also get a flat rate of pay. However, if the employer offers women on maternity leave more that the statutory minimum, men could claim that is discriminatory if they do not get more as well.
• Employers who offer more generous maternity pay schemes should consider giving enhanced benefits to men on paternity leave as well.

​​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.

Implications for employers

• Employers must offer any suitable alternative vacancy to women made redundant on maternity leave.
• The 1999 Regulations require an employer to offer a position to an employee on maternity leave, ahead of those employees not on maternity leave, if there is a suitable vacancy.
• The other job must be both ‘suitable and appropriate’ and ‘not substantially less favourable’ for the woman concerned.
• The place in which she is to be employed, and the other terms and conditions must not be substantially less favourable than those of the previous contract.
• Employers should generally offer what they deem to be a suitable alternative vacancy and then allow the employee to decide if it is suitable.