Blanket Policy

It is directly discriminatory under the Equality Act to treat a woman unfavourably “because of” her maternity leave. In Interserve FM Ltd v Tuleikyte, the Employment Appeal Tribunal (EAT) held that just because a woman happens to be on maternity leave when she is treated unfavourably does not necessarily mean she has suffered unlawful direct discrimination. 

Basic facts 

Interserve operated a blanket policy whereby employees, who had been absent without pay for a period of three months, were classed as leavers and erased from the company’s employment records. Ms Tuleikyte went on maternity leave on 17 June 2013 and was informed shortly afterwards that she was not entitled to statutory maternity pay (SMP) because her earnings were too low to qualify. On 2 October that year she was classed as a leaver by a manager, Mr Garcia. 

When she received her P45 in the post, Ms Tuleikyte rang and spoke to Mr Garcia explaining that she was on maternity leave. He contacted human resources for advice and was told that when she returned to work at the end of her leave, he should indicate on the new joiner form that her employment had, in fact, continued. However, as she ultimately did not return to work, the error was never rectified. 

Ms Tuleikyte claimed unlawful direct pregnancy/maternity discrimination under section 18(4) of the Equality Act 2010 on the basis that she was recorded as a leaver with a termination date of 14 June 2013 whereas her employment did not come to an end until 13 May 2014. 

Relevant law 

Section 18(4) states that: a person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave. 

Tribunal decision 

The tribunal noted that as a result of applying the policy of treating any employee as a leaver if they had not been paid for a period of three months, women on maternity leave who were not entitled to SMP were automatically removed from the company’s records. 

As “an automatic consequence of applying this approach” Ms Tuleikyte had been treated unfavourably because she was absent on maternity leave. “That was inherent in the approach of removing all those who had been absent for three months. The cleansing process then led to the issue of the P45. The Claimant contacted Mr Garcia, he apologised but took no effective steps to remedy the situation.” 

EAT decision 

The EAT agreed that deleting Ms Tuleikyte’s name from the company’s employment records constituted unfavourable treatment, but the crucial question was whether the company had applied its blanket policy to her “because of” her maternity leave”. 

Applying the decision of the Supreme Court in Taiwo and anor v Olaigbe and ors (weekly LELR 481), the EAT held that this was not a case where the employer applied the unfavourable treatment because of a blanket policy or criterion that was necessarily linked to pregnancy or maternity.  If it had been, then all women who went on maternity leave would have had their names deleted from the company’s records.  In addition, for it to be unlawful discrimination, the policy of deleting names would not apply to employees who were not absent on maternity leave but for some other reason. 

It was therefore necessary to show that the reason or grounds for the treatment - whether conscious or subconscious – was absence on maternity leave. The mere fact that a woman happened to be on maternity leave when unfavourable treatment occurred was not enough to establish unlawful direct discrimination under section 18.

The tribunal should therefore have considered what was going through the mind of Mr Garcia when he made the decision to remove Ms Tuleikyte’s name from the company’s records in order to ascertain the “reason for” the treatment. 

The EAT remitted the case to the same tribunal to consider this point.