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Special policies in the time of Covid – what amounts to discrimination?


The application of blanket policies in the workplace can give rise to the risk of unintended indirect discrimination under the Equality Act 2010 (EqA 2010), particularly where policies are implemented in haste. However, a recent Employment Appeal Tribunal (EAT) decision gives some reassurance to employers in that it makes clear that a policy will be considered as whole when considering whether it amounts to disadvantageous or unfavourable treatment.

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In Cowie and ors v Scottish Fire and Rescue Service [2022] EAT 121 , the EAT held that a policy implemented as a result of the Covid-19 pandemic relating to paid special leave for employees who were unable to work due to childcare or shielding, was ultimately favourable to employees. Therefore, the requirement that they first use up their accrued annual leave and time off in lieu (“Leave”) could not detract from its favourable nature and therefore did not, in this case amount to disability or sex discrimination under the Equality Act 2010.

Several employees had brought claims on grounds of unfavourable treatment because of something arising from disability under s.15 of the EqA 2010 and indirect sex discrimination under s.19 EqA. They argued that the requirement to first exhaust Leave amounted to unfavourable treatment under s.15 EqA and was capable of placing the claimants at a particular disadvantage for s.19 purposes, since it compelled them to use annual leave at a time when they did not wish to do so and removed the option of time off in lieu, which would have been available had they been placed on sick leave.

The Employment Tribunal (“ET”) upheld the s.15 claims, though identified no particular loss and therefore awarded no compensatory award on the basis that it was not just to do so and dismissed the s.19 claims altogether. The claimants appealed.

Section 15 EqA 2010 claims – discrimination arising from disability

The EAT found in relation to the s.15 claims that unfavourable treatment was a question of fact which was determined by addressing the following questions: (1) what was the relevant treatment?; and (2) was it unfavourable to the claimants?

Here, the relevant treatment giving rise to the claim was the pre-condition to the paid special leave – namely, that claimants must first use their Leave. The EAT acknowledged that the loss of flexibility and choice in terms of when to take the Leave could constitute unfavourable treatment in general terms. However, this requirement under the policy only arose when and if the claimants sought to access paid special leave. The EAT said that it “would be artificial” to consider the requirements separately as they were “inextricably linked” with the overall purpose of the policy.

The ET had erred by separating out the conditions of entitlement from the benefit itself; and thus, it had misinterpreted that the “something arising in consequence of” the claimants’ disabilities, for the purposes of s.15, was the claimant’s inability to attend work and not the use of the paid special leave policy. The treatment because of that inability to attend work took the form of the paid special leave policy which was ultimately favourable to the employees since it provided them with an entitlement to paid leave on an indefinite basis. The pre-conditions could not detract from the favourable nature of the treatment. The ET’s decision on the s.15 claims were therefore, set aside.

Section 19 EqA 2010 claims – indirect discrimination

The EAT upheld the ETs decision on the s.19 claims which focused on the matter of group disadvantage. However, the EAT went further and set out that, in any event, the dismissal of the s.19 claims would have been upheld on the alternative ground that there was no “particular disadvantage”. The provision, criterion or practice complained of (i.e. the requirement to exhaust all Leave prior to benefiting from the paid special leave policy) only operated in the context of the paid special leave policy and the question of disadvantage therefore, had to be viewed through the operation of the policy as a whole. Since the provision of paid special leave was “clearly favourable” to employees, when viewed as a whole, the EAT found that the ET erred in its approach to the question of “disadvantage” for s. 19 purposes for essentially the same reasons as in relation to the s. 15 claims.

In this case it was important that the employer had sought to be as supportive as it could to ensure staff were able to manage personal issues while attending work throughout the Covid-19 pandemic. As various employment cases arising out of the Covid-19 pandemic make their way through the Tribunals it is interesting to see how they are contextualised, given the  unprecedented circumstances.

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