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EAT says “no discrimination” for requiring employees to exhaust annual leave before receiving further paid leave for Covid-19 related absences

29 September 2022

The Employment Appeal Tribunal (“EAT”) has recently found in Cowie & Other v Scottish Fire and Rescue Service (“Scottish Fire Service”) that it was not discriminatory for the Scottish Fire Service to have required employees to use up accrued annual leave and time off in lieu (“TOIL”) before they were granted additional paid leave to cover absences as a result of Covid-19.

Background

The claimants were employed by the Scottish Fire Service. During the pandemic, the Fire Service introduced an interim special leave policy whereby employees – who had to remain at home because they were shielding or for childcare reasons relating to Covid-19 (and who could not perform their work from home) – would continue to be paid. A condition of this new paid leave was that the employees in question first had to use up any annual leave and TOIL.

Two separate group claims were brought in the Employment Tribunal (“ET”) against the Scottish Fire Service in which it was claimed that it was discriminatory for the Scottish Fire Service to require employees to use up their annual leave and/or TOIL entitlement before receiving the further paid leave.

One group complained of discrimination arising from a disability (pursuant to section 15(1) Equality Act 2010 (“EA 2010”)) and the other group complained of indirect sex discrimination (pursuant to section 19 EA 2010).   

What is discrimination arising from disability?

Pursuant to section 15(1) EA 2010, discrimination arising from a disability is where “A treats B unfavourably because of something arising from B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Section 15(1) EA 2010 only applies where A knew or can have been reasonably expected to know that B had a disability.

Case law has established that in order to determine whether there has been unfavourable treatment, you must ask:

  1. What was the relevant treatment, and
  2. Was it unfavourable to the claimant?

What is indirect sex discrimination?

Pursuant to section 19 EA 2010 indirect sex discrimination is where A applies to B a provision, criterion or practice (“PCP”) and where:

  • A applies (or would apply) that PCP to persons not of the same sex as B;
  • the PCP puts or would put persons of B's sex at a particular disadvantage;
  • the PCP puts or would put B at that disadvantage; and
  • A cannot show the PCP to be a proportionate means of achieving a legitimate aim.

What did the Employment Tribunal find?

The ET found that whilst there was a PCP capable of constituting a particular disadvantage (for the purposes of section 19 EA 2010) it was found that there was no group disadvantage for women and so the complaints of indirect sex discrimination were dismissed.

The section 15 EA 2010 claim, however, succeeded as the ET found that removing the choice and flexibility in terms of when they were able to use up their annual leave and TOIL (e.g. at a later date), before they received their special leave, amounted to unfavorable treatment because of something arising in consequence of a disability. The ET said the “something arising in consequence of a disability” requirement was met because the need for the special leave policy only arose because of the claimants’ disabilities, which meant that they were unable to work. It also concluded that this unfavorable treatment was not objectively justifiable and nor was it a proportionate means of achieving the legitimate aims proposed by the Scottish Fire Service.

Both the claimants and Scottish Fire Service appealed the decisions, however the EAT only allowed the Scottish Fire Service’s appeal and dismissed the claimants’ appeal.

Employment Appeal Tribunal Judgment

The EAT’s most significant finding, applying the Supreme Court judgment of Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018], was that the ET had erred in its finding that the preconditions to the special paid leave amounted to unfavorable treatment for the purpose of section 15 EA 2010.

The EAT accepted that loss of choice and flexibility in terms of when the claimants could use their accrued leave and TOIL “could constitute unfavorable treatment in general terms” but that the difference in this case was that “there was no general requirement on the claimants to use TOIL and/or leave at a time of the respondent’s choosing; rather, the specific requirement to exhaust any accrued TOIL and/or leave arose only when, and to the extent that, the claimants sought to access paid special leave.” The EAT went on to note that the preconditions and the entitlement to paid special leave were “inextricably linked” and that it was wrong of the ET to have considered them separately – the conditions of entitlement to the benefit could not and should not have been separated out from the benefit itself.

The EAT found that this error continued throughout the ET’s assessment of section 15 EA 2010 when establishing whether something had arisen that was in consequence of the claimants’ disabilities. It found that the thing that arose in consequence of the claimants’ disabilities was not the use of the paid special leave policy but the claimants’ inability to attend work. It noted that “the treatment meted out by the respondent because of that inability to attend work (the “something”) took the form (relevantly) of the paid special leave policy. As was not in dispute, that policy was favourable to the claimants, providing them with an entitlement to paid leave on an indefinite basis. Although the policy was subject to conditions for entitlement (the prior use of accrued TOIL/annual leave) that could not detract from the favourable nature of that treatment.”

Final thoughts

This case provides us with a helpful reminder that advantageous treatment can never be deemed to be unfavourable for the purpose of section 15 EA 2010, even if the treatment could have been more favourable than it was. It also acts as a useful reminder not to artificially separate the conditions of entitlement to a benefit from the benefit itself, when assessing whether treatment is unfavourable or not.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.

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