It is unlawful pregnancy and maternity discrimination to treat a female employee unfavourably because she is exercising the right to maternity leave. The word "because" requires analysis of why the alleged discriminator acted in the alleged manner.
The employer had a policy of treating as a leaver anyone who had not received payment for the last three months. The employee commenced maternity leave in June 2013 but did not meet the earnings threshold for statutory maternity pay (SMP). Accordingly, she did not receive any payments from Interserve once she had commenced maternity leave.
Following the start of her maternity leave, her manager changed. He received a spreadsheet showing that she had not received any payments in the preceding three months. He applied the policy, which resulted in P45s being issued to her and six other employees. The manager had not been aware that she was on maternity leave and was subsequently advised by HR that he did not need to correct the company's records but that he should complete a backdated new joiner form when she returned from maternity leave. She didn’t infact return from maternity leave, so her leaving date was never amended which meant she lost benefits and the accommodation she had been living in.
She issued proceedings in the employment tribunal claiming pregnancy and maternity discrimination, which a tribunal upheld, deciding that an automatic consequence of applying the policy was to treat her unfavourably because she was absent on maternity leave.
The employment appeal tribunal allowed the employer’s appeal for the following reasons:
The policy had two constituent criteria but they had to be considered cumulatively: in order for the policy to apply, an individual had to both be absent and not receiving any payment.
The policy was neutral on its face, and the employee had not argued that, in practice, it was targeted at women generally, or women on maternity leave.
In these circumstances, not all women on maternity leave would be caught by the policy and other employees who were not on maternity leave could be caught. It followed that the policy was not inherently based on or necessarily linked to pregnancy or maternity and, accordingly, the tribunal had been required to consider the mental processes of the putative discriminator.