Interserve FM Ltd v Tuleikyte

For a claim under section 18(4) of the Equality Act 2010, unfavourable treatment must be because of maternity leave. A neutral policy affecting employees absent without pay for a stated period is not inherently discriminatory merely because it can affect some women on maternity leave.

Where the criterion is not indissociably linked to pregnancy or maternity, the tribunal must determine the actual reasons for the treatment, including any conscious or unconscious influence of maternity leave. The absence of an indirect pregnancy or maternity claim does not alter that analysis.

The employer appealed against an Employment Tribunal finding that it had directly discriminated against the claimant under section 18(4) of the Equality Act 2010.

During maternity leave, the claimant was recorded as a leaver under a policy treating employees without pay for three months as leavers. The Tribunal held that the policy automatically treated her unfavourably because she was on maternity leave. It found only that single act of discrimination; there was no cross-appeal concerning the employer's later failure to correct its records.

The central issue was whether the policy created a criterion case, in which its application itself established discrimination, or a reasons-why case requiring examination of the decision-maker's reasons.

1. Appeal allowed and remitted. The Employment Tribunal erred by treating the policy as an inherently discriminatory criterion. The policy's composite criterion was absence without earnings for three months. Neither component alone produced the treatment, so they had to be assessed together.

2. The policy was facially neutral. It did not necessarily apply to every woman on maternity leave, since women qualifying for statutory maternity pay would not be caught. It could also apply to employees absent without earnings for other reasons. The policy was therefore not based on, or necessarily linked to, pregnancy or maternity.

3. Section 18(4) of the Equality Act 2010 requires the tribunal to ask whether maternity leave was the reason or ground for the unfavourable treatment. A woman being on maternity leave when treatment occurs is insufficient. In a reasons-why case, maternity leave need only be a significant influence; it need not be the sole or principal reason.

4. The Appeal Tribunal could not safely substitute a finding that there had been no discrimination. The Tribunal had made no findings on whether the neutral policy operated in practice so as to coincide with maternity leave, and it had not applied the reasons-why inquiry. Applying Jafri v Lincoln College, the issue was remitted to the same Tribunal. It was confined to the deletion of the claimant's employment record on 2 October 2013.

5. The existing remedy judgment was set aside because it depended upon the liability finding. The employer's application for appeal fees was refused in the exercise of the costs discretion, having regard to the claimant's means and the consequences of the employer's actions.

• Employment Appeal Tribunal: Allowed the employer's appeal, set aside the Employment Tribunal's finding of discrimination and remitted the limited liability issue to the same Tribunal.
• Employment Tribunal: Found a single act of unlawful discrimination under section 18(4) of the Equality Act 2010, arising from recording the claimant as a leaver.