Under the Equality Act 2010, indirect discrimination is where the employer applies a provision, criterion, or practice (PCP) that places the employee and others who share the protected characteristic at a disadvantage, and the employer cannot show that the PCP is justified.
Discrimination arising from disability is where an employee is treated unfavourably because of something arising in consequence of their disability, which again the employer cannot show is justified.
If a business introduces special benefits for employees but then stipulates certain conditions have to be met before the benefits can be accessed, to what extent is it possible to challenge the conditions on the grounds that they indirectly discriminate or that they amount to discrimination arising from disability?
In Cowie and Others v Scottish Fire and Rescue Service a requirement that employees exhaust entitlement to other leave entitlements before using a new special leave was challenged on these two grounds.
During the Covid pandemic the employer recognised that a number of staff needed to remain at home because of childcare issues or a need to shield because they were vulnerable. To support employees, it was announced that special paid leave would be made available to those who were impacted.
It was, however, made a condition of the scheme that before taking this special paid leave any accrued entitlement to time off in lieu (TOIL) and annual leave would have to be exhausted. Working parents challenged these conditions on the grounds that they indirectly discriminated on the grounds of sex, while disabled employees alleged that imposing such conditions amounted to ‘discrimination arising’. Both groups relied upon the loss of flexibility and choice in terms of when to take accrued TOIL and annual leave as amounting to a disadvantage and unfavourable treatment.
The employer disputed that the conditions were unfavourable or placed the claimants at any disadvantage.
The Employment Appeal Tribunal held that the claimants had suffered no unfavourable treatment arising from disability nor any disadvantage in respect of the indirect discrimination claim.
The requirement to use TOIL and take annual leave had to be considered alongside the entitlement to special paid leave. The conditions of entitlement to the benefit could not be separated out from the benefit itself and should not detract from it. The relevant treatment was the granting of paid special leave, which was ‘clearly favourable treatment’. The application of conditions did not make the granting of special leave unfavourable treatment. Removing such conditions would simply mean the treatment would be even more favourable.
The tribunal also confirmed that had the claims succeeded it would not be appropriate to award compensation where there was no evidence of injury. The evidence given that the employer's treatment was ‘not very nice’ was insufficient.
While the facts here concern a special paid leave policy introduced during the height of the pandemic, employers will be able to take some reassurance from this decision in relation to the introduction of further or special benefits more generally. It highlights that the conditions of entitlement to a benefit should not be artificially separated from the benefit itself. Employees will still have been given a benefit that will amount to favourable rather than unfavourable treatment. It follows that, properly assessed, it will be unlikely to give grounds to establish that the employees have suffered because of discrimination or incurred any loss.
The judgment also contains a useful reminder for claimants of the importance of being able to produce evidence that shows the discriminatory act has actually caused loss or injury to feelings rather than just a sense of grievance.
Avril England is an employment partner at Gateley Legal