In Cowie and ors v Scottish Fire and Rescue Service (SFRS), the Employment Appeal Tribunal (EAT) held that a special leave policy did not amount to discrimination. The policy allowed employees to be paid indefinitely throughout the Covid-19 pandemic, providing that they first exhausted accrued annual leave and time off in lieu. The EAT concluded there was no discrimination arising from a disability or indirect sex discrimination under the Equality Act 2010 (EqA).
SFRS’ Paid Special Leave During Covid-19
During the coronavirus pandemic, the SFRS introduced a paid special leave policy, whereby staff who needed to remain at home due to shielding or childcare reasons would continue to be paid notwithstanding their inability to work. The pre-condition, however, was that they first use up any accrued annual leave or any time off in lieu (TOIL) they had.
The employees brought claims against SFRS in an employment tribunal. Their basis was that this pre-condition, which removed the flexibility of taking TOIL and/or annual leave at a time of their choosing, constituted unfavourable treatment. With this arising from disability discrimination under Section 15 EqA as those shielding were more likely to be disabled. They also claimed that it resulted in indirect sex discrimination, under Section 19 EqA, as those with childcare issues were more likely to be women.
An employment tribunal dismissed the claims for indirect sex discrimination but found that there had been unfavourable treatment arising from the disability. It did not, however, find it appropriate to make an award of damages. Both sides appealed.
The Appeals
On appeal, the EAT dismissed both claims, concluding that the claimants had suffered no ‘unfavourable treatment’ under Section 15 EqA or ‘disadvantage’ under Section 19 of EqA. The ability to take special paid leave amounted to favourable treatment and the requirement that the employees must use accrued annual leave and TOIL did not detract from the fact that the special leave policy was favourable overall. The claimants had complained about the conditions attached to the entitlement, but those conditions could not be looked at separately and in isolation from the benefit itself – the policy had to be viewed as a whole. The policy was not less favourable and the claimants were not disadvantaged, it could have been even more favourable without the conditions imposed.
This ruling suggests that where an employer has a paid special leave policy that invariably offers favourable treatment, any potentially unfavourable pre-conditions cannot be separated from the policy itself for a discrimination claim.
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