EAT (Maternity Rights and Parental Leave) Sex discrimination
A pregnant employee refused to enter a salary sacrifice scheme operated by the Respondent under which childcare vouchers were provided because its terms required her to agree that during periods of maternity leave the entitlement to vouchers for which salary would be sacrificed would be suspended. An ET held that it was discriminatory to offer such terms, on the ground of sex (s.19 Equality Act), under s.18 Equality Act (unfavourable treatment because of asserting a right to maternity leave) and under reg. 9 Maternity Regulations 1999. It was argued on appeal that the provision of childcare vouchers under a salary sacrifice scheme was within the meaning of ‘remuneration’ in the 1999 Regulations and that the conclusion in respect of s.19 was erroneous, since jurisdiction was excluded by the provisions of the Act as to the operation of equality clauses in terms and conditions. The ET had based its decision on Guidance which was erroneous; properly analysed, a salary sacrifice scheme was a diversion of salary from the pay-packet to the voucher provider, and the it had misunderstood the essential nature of the scheme. Moreover, it had not been the intention of Parliament to require employers to continue providing vouchers at a time when there was no salary which could be sacrificed in respect of them (the employees of the Respondent were entitled to statutory maternity pay only, which could not be diverted for that purpose). The appeal was allowed.
Langstaff J
[2016] UKEAT 0249 – 15 – 0903
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.560991