Cowie and others v Scottish Fire and Rescue Service
The Covid-19 pandemic resulted in thousands of employees being unable to work due to health reasons, many of whom were required to shield due to their medical conditions or who had to remain home for childcare reasons.
Employees of the Scottish Fire and Rescue Service who needed to stay home but who could not work from home were offered the option of taking a special form of paid leave. A condition of this was that the employees were first obliged to exhaust any accrued annual leave or time off in lieu.
The claimants argued that the inability to choose when to take annual leave or time off in lieu was discriminatory on the grounds of disability and of sex. In terms of the sex discrimination the claimants argued that the policy gave rise to a particular disadvantage for women under s 19A of the Equality Act 2020 (indirect discrimination).
The Employment Appeal Tribunal (EAT) dismissed both claims on the basis that there was neither any ‘unfavourable treatment’ nor any ‘disadvantage’. The EAT concluded that the conditions for entitlement to the special leave did not detract from the favourable nature of the policy: it was not less favourable simply because it would have been even more favourable had the conditions not been applied, and nor was it less favourable simply because some beneficiaries might not have had to give up time off in lieu/annual leave (eg, those who had already taken their leave or claimed money instead of time off in lieu) to get the benefit.
Black v Evelyn Drain t/a Pat Black Barbers
A hairdresser, dismissed after notifying her employer that she was pregnant, has been awarded £7,500 as injury to her feelings.
The claimant began work with the respondent’s business in October 2019 and in 2020 she became pregnant. Mrs Drain contacted the claimant and tried to terminate her employment but chose not to after the claimant mentioned her employment rights. The claimant left on maternity leave and as a result of the Covid-19 pandemic agreed to work reduced hours on her return. No other staff members were asked to reduce their hours.
The claimant discovered that she was pregnant again whilst on maternity leave and she advised her employer. On her first day back at work was asked to stay behind and speak to Ms Drain. Ms Drain advised the claimant that she was being paid off on redundancy grounds. Mrs Drain stated that she was being made redundant for economic reasons – the business was not as profitable following the pandemic but no redundancy selection process was followed and there was no informal or formal consultation. The claimant believed she had been dismissed because of her second pregnancy.
The claimant was distressed and upset following the termination of employment and believed the stress caused her to have an epileptic fit. She contacted her GP who increased her medication
The tribunal found in the claimant’s favour and, whilst expressing some sympathy for the respondent, said the timing of the redundancy had been ‘significant’. The judge said: "The timing and conjunction of events coupled with the past actions of [Ms Drain] when [Miss Black] first became pregnant coupled with lack of wider consultation was sufficient in our view to allow us to draw inferences of discrimination.”
Swiss Re Corporate Solutions Limited v Sommer
A female underwriter is in line for compensation after winning her case for sex discrimination. Ms Sommer was made redundant following a period of maternity leave. Before this, her boss had made lewd comments about her breasts and once told her to ‘shut up’ during a meeting.
Ms Sommer worked as a junior underwriter at insurance giant Swiss Re. She told the employment tribunal that she had been subject to sexual harassment since she began her role in 2017. In a conversation with her boss, Robert Llewellyn, about her decision to relocate to London he said: ‘If I had breasts like yours, I would be demanding too.’ When she responded that she felt she knew what she wanted, he added: ‘I bet you like to be on top in bed.’
Sommer also alleged that Llewellyn had made comments about her being interested in pursuing an open relationship and that he had once screamed at her to ‘shut up’ during a meeting.
Sommer announced she was pregnant in May 2019. The tribunal saw evidence of emails sent two days after this announcement to Swiss Re’s HR department, asking whether it was possible to explore the ‘boundaries’ of corporate policy as they were ‘not really satisfied’ with her performance. The tribunal also saw a cost savings spreadsheet from September with ‘let go in 2020’ in the comments section next to Sommer’s name.
The EAT said that placing Ms Sommer at risk of redundancy was held to be an act of direct sex discrimination because the company had realised it could do without an underwriter at her grade, but only reached that decision because she was on maternity leave.
Charlotte Geesin is legal director at Howarths