381: Paid special leave policies: are employers discriminating for imposing pre-COVID-19 conditions?

In Cowie v Scottish Fire and Rescue Service, the Employment Appeal Tribunal (EAT) considered whether it was discriminatory to require employees to use up accrued annual leave and time off in lieu (TOIL) before being eligible for additional paid special leave during the pandemic.

The Scottish Fire Service introduced a paid special leave policy for employees needing to remain at home shielding or to cover childcare during the Covid-19 pandemic. Entitlement to this special leave was conditional on employees first using up any accrued TOIL and annual leave. Two groups of claimants brought claims in the Employment Tribunal (the Tribunal) in relation to these pre-conditions, one group alleging indirect sex discrimination and the other alleging discrimination arising from disability.

The Tribunal and the EAT dismissed the indirect sex discrimination claims because there was no evidence of a childcare disparity or other group disadvantage to women.

The Tribunal upheld the disability claims, ruling that forcing disabled employees to use up their annual leave while shielding, and removing their choice and flexibility in taking TOIL, was unfavourable treatment because of something arising from their disability. The claimants’ need to take special leave only arose because their disabilities meant they were unable to work due to Government advice. The Tribunal held that this unfavourable treatment was not objectively justified or proportionate, although no compensation was awarded as there was no evidence of injury to feelings in the sense required.

The EAT has now held that the Tribunal was wrong to separate the preconditions for the special Covid leave from the benefit itself. Offering employees this new type of leave in response to the pandemic was clearly advantageous treatment. The conditions chosen by the Fire Service for accessing the benefit could not be unlawful just because they could have been even more favourable. It was therefore not discriminatory to require employees to have used up accrued holiday and TOIL before being eligible.

This case confirms that “unfavourable treatment” for the purposes of the discrimination legislation will be considered in context. Here, the benefit offered to employees was, overall, very favourable and many of the claimants were given paid special leave for long periods due to the requirement to shield, or for childcare reasons. Reassuringly for employers, a benefit or policy will not constitute unfavourable treatment just because its terms could have been more generous.

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