The Employment Appeal Tribunal (EAT) has confirmed that an employer’s paid special leave policy during the Covid-19 pandemic did not give rise to discrimination arising from disability or indirect sex discrimination. Special paid leave was offered to employees who were unable to work because they were shielding or for childcare reasons. The policy was considered favourable to employees by the tribunal as it gave employees the opportunity to take paid leave on an indefinite basis. The caveat to this, and why it ended up at the tribunal, is because it required employees to first use up all their annual leave and time off in lieu off before they were able to use this special leave.
Conditions for taking special paid leave
The Scottish Fire and Rescue Service (SFRS) introduced a paid special leave policy during the pandemic for staff who had no choice but remain at home and were unable to carry out their work from home. The policy allowed them to be paid as normal regardless of their inability to work. However, they first had to use up any accrued time off in lieu (TOIL) and annual leave. This prompted many SFRS employees to bring claims before the employment tribunal that the policy was discriminatory. They argued that the policy amounted to discrimination arising from disability and had also put women at a particular disadvantage.
Discrimination claims
The contentious issue was the removal of flexibility and choice around when to take TOIL and annual leave. The employees argued this was unfavourable treatment amounting to discrimination because they were unable to take the leave when they wanted and this placed women at a particular disadvantage and constituted unlawful indirect sex discrimination.
No group disadvantage established for women
Despite finding that the special leave policy was capable of constituting a particular disadvantage to certain protected groups, the tribunal did not consider that the claimants had established the necessary group disadvantage to women to succeed with their claim of indirect sex discrimination. There was no evidence that female employees had been more likely to accrue TOIL than male employees, as both had similar accrued TOIL balances. Likewise, although accepting that women ordinarily carry greater childcare responsibilities, albeit recognising that during the pandemic the situation was more nuanced, this did not necessarily mean that more women than men had relied on the special leave policy when their childcare arrangements had broken down. Ultimately, it could not be said that the majority of people taking special leave under the policy were women: disabled people of any gender and their carers were just as likely to take special leave.
Finding of unfavourable treatment
The tribunal did, however, uphold the claim of discrimination arising from disability, finding that the removal of flexibility and choice as to when to take TOIL and annual leave constituted unfavourable treatment because of something arising in consequence of disability and could not be objectively justified. The policy was, therefore, in the tribunal’s opinion, discriminatory on this ground.
Appeal to the EAT
SRFS appealed the tribunal’s finding to the EAT, which overturned the judgment and instead found that the special leave policy was not discriminatory. The requirement to use accrued TOIL and annual leave before accessing the special paid leave only arose when, and to the extent that, the claimants sought access to the special leave. The EAT concluded that the “something arising in consequence of” the claimants’ disabilities was not the special leave policy but the claimants’ inability to attend work. The treatment meted out by SRFS in response to the claimants’ inability to attend work was to offer paid special leave pursuant to the terms of its policy. In the EAT’s view, this treatment could not be considered unfavourable but quite the opposite; it provided those who couldn’t work for pandemic-related reasons outside their control with entitlement to paid leave on an indefinite basis. The conditions imposed to access this paid leave (first exhausting accrued TOIL and annual leave) did not detract from the overall highly favourable nature of the treatment. It was also recognised that, had staff not been asked first to utilise their accrued annual leave and TOIL, SFRS’ operation would have been adversely affected in a number of ways.
The EAT agreed with the tribunal’s view that no group disadvantage for women had been demonstrated. In any event, any indirect discrimination claim would have failed regardless because of the EAT’s finding that the special leave policy, when considered as a whole, was favourable.
Consider policy in its entirety
The tribunal considered SFRS’s special leave policy in its entirety and held it was wrong to distinguish the policy from its necessary preconditions when assessing whether it was discriminatory in nature. No worker was subjected to financial detriment as all leave was paid and given on an indefinite basis. Asking the aggrieved employees to use all their accrued leave and TOIL was consistent with the approach it took with its other employees, and part of an overall favourable situation to support employees during the pandemic.
Case: Mr Michael Cowie and Others v Scottish Fire and Rescue Service
Sarah Taylor
Ella Whelan