Was it discriminatory to grant special paid leave during the Covid-19 pandemic?

The Employment Appeal Tribunal (EAT) has confirmed that an employer’s paid special leave policy during the Covid-19 pandemic did not result in disability discrimination or indirect gender discrimination. Special paid leaves were offered to employees who could not work because they were protected or for childcare reasons. The policy was considered employee-friendly by the court because it offered employees the option of taking paid time off for an indefinite period. The caveat to this, and why it ended up in court, is that it required employees to first use up all of their annual leave and compensatory leave before they could use that special leave.

Conditions for taking special paid leave

The Scottish Fire and Rescue Service (SFRS) has introduced a special paid leave policy during the pandemic for staff who had no choice but to stay at home and were unable to perform his work from home. The policy allowed them to be paid as usual, regardless of their inability to work. However, they had to use compensatory time off and accrued annual leave first. This prompted many SFRS employees to file a complaint with the labor court for the discriminatory nature of this policy. They argued that this policy amounted to discrimination on the basis of disability and had also placed women at a particular disadvantage.

Complaints of discrimination

The contentious issue was the removal of flexibility and choice over when to take work and annual leave. The employees argued that this was unfavorable treatment amounting to discrimination because they were not able to take the leave when they wanted, which particularly disadvantaged women and amounted to gender discrimination. indirect illegal.

No established group disadvantage for women

Although it concluded that the special leave policy was likely to constitute a particular disadvantage for certain protected groups, the court did not consider that the plaintiffs had established the necessary group disadvantage for women to win their case with their claim of indirect sex discrimination. There was no evidence that female employees were more likely to accumulate TOIL than male employees, as both had similar accumulated TOIL balances. Similarly, while accepting that women generally take on greater childcare responsibilities, while acknowledging 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 broke down. Ultimately, it cannot be said that the majority of people taking special leave under this policy are women: people with disabilities of any gender and their carers are just as likely to take special leave.

Unfavorable treatment report

The tribunal, however, upheld the claim of discrimination stemming from disability, holding that the removal of flexibility and choice as to when to take the work sentence and annual leave constituted unfavorable treatment due to an event resulting from the disability. and could not be objectively justified. The policy was therefore, in the court’s view, discriminatory on this ground.

Call to EAT

SRFS appealed the court’s finding to the EAT, which overturned the judgment and instead concluded that the special leave policy was not discriminatory. The requirement to use TOIL and accrued annual leave prior to accessing paid special leave only arose when, and to the extent, claimants requested access to special leave. The EAT concluded that “something resulting from” the applicants’ disabilities was not the special leave policy, but the applicants’ inability to get to work. SRFS’ treatment in response to the plaintiffs’ inability to report to work was to provide paid special leave in accordance with the terms of its policy. In the eyes of the EAT, this treatment cannot be considered unfavorable, quite the contrary; it offered those who could not work for pandemic-related reasons beyond their control the right to indefinite paid leave. The conditions imposed for access to this paid leave (first exhaustion of accumulated TOIL and annual leave) do not detract from the generally very favorable nature of the salary. It was also recognized that if staff had not been required to use their accumulated annual leave and working hours beforehand, the functioning of SFRS would have been affected in a number of ways.

The EAT agreed with the court’s view that no group disadvantage for women had been demonstrated. In any event, any claim of indirect discrimination would have been dismissed despite the EAT’s finding that the special leave policy, taken as a whole, was supportive.

Consider the policy in its entirety

The court reviewed the SFRS special leave policy in its entirety and found that it was wrong to distinguish the policy from its prerequisites necessary to assess whether it was discriminatory in nature. No worker suffered financial harm as all leave was paid and granted for an indefinite period. Asking aggrieved employees to use all their accumulated leave and TOIL was consistent with the approach it had taken with its other employees and part of an overall favorable situation to support employees during the pandemic.

Case: Mr Michael Cowie and Others v Scottish Fire and Rescue Service