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It's a family affair: an update on recent changes to family friendly rights

There have been a number of important changes to the law affecting pregnancy and maternity rights in recent months. There are also a number of proposals in the pipeline that will affect the rights of employees to work flexibly and to take parental leave. This article will examine the changes that are already in force and those that will soon be taking place.

Pregnancy and maternity discrimination under the Equality Act 2010

The Equality Act 2010 (EA) came into force on 1 October 2010 with the aim of harmonising and simplifying UK discrimination law. Before the EA came into force, discrimination on the grounds of either pregnancy or maternity was covered by the provisions of the Sex Discrimination Act 1975 (SDA). Now, however, pregnancy and maternity is one of the nine ‘protected characteristics’ specifically identified by the EA.

Under the relevant provision of the EA, it is unlawful for an employer to:

  • Discriminate against a woman by treating her unfavourably because of her pregnancy or because of an illness suffered by her as a result of her pregnancy during the "protected period".
  • Discriminate against a woman by treating her unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise (or has exercised or sought to exercise) the right to take ordinary or additional maternity leave.

The definition of "protected period" from the SDA is replicated under the EA, which says it is the period that begins when pregnancy begins and ends:

  • If a woman has the right to both ordinary and additional maternity leave, at the end of additional maternity leave or, if earlier, the date she returns to work after her pregnancy.
  • If the woman does not have that right, at the end of the two week period starting with the end of her pregnancy.

When deciding whether a woman has been discriminated against because of pregnancy or maternity, a tribunal will need to consider if she has been treated "unfavourably". For these purposes, there is no need to consider a comparator, although identifying one may assist an employer in showing that any treatment complained of was not related to pregnancy or maternity leave.

The provisions of the Employment Rights Act 1996 (ERA), which, with the exception of pay, protect women in cases of dismissal and detriment where the main reason for the treatment is in relation to pregnancy or maternity leave, are unaffected by the EA. A woman may therefore be able to bring claims under both the EA and the ERA.


Direct discrimination

An area of potential confusion under the EA is the relationship of unfavourable treatment because of a woman's pregnancy or maternity leave with the direct discrimination provisions of the EA. Direct discrimination is defined in the EA as follows: "a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others". The EA states that unfavourable treatment because of pregnancy or maternity is not direct sex discrimination. However, the EA does not expressly confirm whether pregnancy and maternity discrimination is limited to claims in relation to unfavourable treatment or whether direct pregnancy and maternity discrimination claims can be brought under the EA. This is significant because of the possibility of bringing claims for associative or perceptive discrimination under the direct discrimination provisions of the EA (discussed below).


Special treatment

Like the SDA, men are prohibited under the EA from bringing a direct sex discrimination claim by comparing their treatment with the special treatment afforded to pregnant women or women who have just given birth. "Special treatment" includes, for example, a woman's right to receive statutory maternity pay and be offered suitable alternative employment if placed at risk of redundancy during maternity leave. The concept of special treatment was recently considered by the tribunal in De Belin v Eversheds Legal Services Ltd (although the decision has been appealed and so should be treated with some caution). The tribunal found that such special treatment is not a "blanket" right and that it was direct discrimination against a man to artificially inflate the redundancy score of a female colleague who was on maternity leave.


Associative and perceptive discrimination

The EA introduces a new protection against associative and perceptive direct discrimination for all protected characteristics (except marriage and civil partnership). However, the inter-relationship between this new protection and pregnancy and maternity discrimination is currently unclear. Pregnancy and maternity leave are not specifically excluded from associative or perceptive discrimination protection under the EA. However, the provision of the EA that addresses pregnancy and maternity discrimination at work does not mention associative or perceptive discrimination. Further, whilst the EA's explanatory notes imply that an associative or perceptive direct pregnancy and maternity discrimination claim is possible, the draft EHRC Code implies the opposite suggesting that a direct sex discrimination claim should be brought if a person feels they have been less favourably treated because of their association with a pregnant woman. The end result of this anomaly will be dependent on case law, although there is a risk that this may be an area where protection is expanded further than was initially envisaged. The recent EAT case of Kulikaoskas v MacDuff Shellfish and another considered this point under the SDA but concluded that this issue may not be clearly covered under the EA.


Offering suitable alternative vacancies to employees on maternity leave during a redundancy process

The recent EAT decision in Simpson v Endsleigh Insurance Services Ltd and others is a helpful one for employers who have employees on maternity leave during a redundancy process.

Where an employee is made redundant, regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (the "Regulations") states that she is entitled to actually be offered (before the end of her employment under her existing contract) available alternative employment with her employer or his successor, or an associated employer, under a new contract of employment: the employee is given priority over other employees not on maternity leave. However, this right only arises if the new contract is such that:

  • The work to be done under it is both suitable in relation to the employee and appropriate for her to do in the circumstances.
  • Its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

In most redundancy situations, employers tend to focus more on the "suitability" and "appropriateness" of any vacancy under the first limb, rather than on the provisions of the second limb. However, the decision in Simpson is authority for the fact that, unless a vacancy satisfies both limbs, it will not be suitable alternative employment under the Regulations. For example, an employer will not be required to offer an employee on maternity leave who worked in London a vacancy in Cheltenham if in reality they would not re-locate (as was the case in Simpson). The EAT held in this case that the work was suitable and appropriate for the employee, but the location was substantially less favourable to her, and she was not therefore entitled to be offered the vacancy.

Further, it is for an employer to decide whether to offer a suitable alternative vacancy and there is no statutory requirement for the employer to engage with the employee to establish whether a role fits the requirements in this process. An employer should consider what it knows about the employee's personal circumstances and work experience and decide whether or not a vacancy is suitable. Best practice to avoid litigation, however, remains to look at each role by reference to an employee's individual circumstances and to specifically consult with those employees on maternity leave about available roles (and document what is said) at the same time as carrying out a redundancy consultation exercise with other employees.

An employer may find itself in a position where it has to consider offering a woman on maternity leave a job with more favourable terms (for example a more senior role) as a suitable alternative. However, the EAT in Simpson was not willing to look at the possibility of suitability being tested by assessment or interview — to do so would remove the special protection afforded by the Regulations. The EAT recognised that this could put an employee on maternity leave in a more advantageous position than had she been at work, although if the vacancy is significantly more senior it is unlikely to be suitable for the employee in terms of either experience or qualifications.

Additional paternity leave

The Government has confirmed that the Additional Paternity Leave Regulations 2010 (the "Paternity Regulations"), which apply to parents of children due on or after 3 April 2011, will remain in force to encourage shared parenting. Under the Paternity Regulations, if a mother returns to work early, employed fathers may take up to six months additional paternity leave, some of which may be paid at a statutory rate. Previously the Government had said that it would consider whether the Paternity Regulations are the best way forward.

One recent ECJ ruling which may have repercussions for paternity leave in the UK is the case of Roca Alvarez v Sesa Start Espana ETT SA. This Spanish case concerned "breast feeding leave" and the right for men and women to take time off in Spain, historically for breast-feeding, but more recently for bottle-feeding. In order for a man to take the leave, the mother needed to be employed and also qualify for the right. This is similar to the UK where a man will only be able to take additional paternity leave if the mother qualifies for maternity leave. 

The male Spanish employee in this case was not allowed to take the leave since his wife was self-employed. The ECJ noted that the leave was no longer limited to breast feeding and could be considered as time devoted to the child and a measure which reconciles family life and work following maternity leave. The leave was therefore for workers in their capacity as parents of children. The ECJ held that by the mother being "the holder" of the right by having to be an employee and the father's right being linked to the employed status of the mother, traditional gender roles were perpetuated by keeping men in a subsidiary role to women. The ECJ noted that this can lead to other forms of disadvantage for women (for example affecting the mothers' ability to run her own business). The European Court on Human Rights has also recently rejected the notion that differences in treatment between men and women can be justified on the basis that woman are primary carers of children in a case involving the right to take parental leave under Russian military law.

Some commentators have suggested that the Roca case paves the way for male employees on additional paternity leave in the UK to claim that they are entitled to enhanced benefits during additional paternity leave if the employer provides such benefits to women on maternity leave, although in most cases the comparison will be with the benefits women receive during additional maternity leave. There is no case law in this area as yet and there are no reported claims regarding men on ordinary paternity leave claiming for equal enhanced benefits from an employer and we will therefore have to wait to see whether those commentators are correct. Historically however, men have been prevented from comparing themselves with women on maternity leave (as discussed above, there are caveats to a man's ability to bring a direct sex discrimination claim under the EA). The significance of the Roca case may be wider, however, in that it also raises the question of whether basing access to additional paternity leave purely on a woman's qualification for maternity leave can be maintained. In relation to both points, case law will be needed in this area in the UK to clarify the issue.


Extending maternity rights?

The European Parliament has recently voted in favour of certain changes to the EU Pregnant Workers Directive. The European Commission had proposed an increase in the minimum period of maternity leave from 14 to 18 weeks at full pay, giving Member States the option to cap pay at the level of sick pay. However, the European Parliament wants to extend these proposals to include, broadly, a change to 20 weeks' maternity leave at full pay and a right to take prescribed time off for breast-feeding.

The UK already has a more generous right in relation to the maximum amount of maternity leave that can be taken by an employee, but the potential change to an initial maternity leave period at full pay is a new and potentially costly change for UK employers.

Other proposals voted on favourably by the European Parliament include:

  • A prohibition on workers being obliged to perform night work or overtime during the 10 weeks before birth, during the remainder of pregnancy if the mother or unborn child have health problems or during the entire breastfeeding period; and
  • A compulsory maternity leave ("CML") period of at least six weeks after childbirth.

The latter of these proposals may impact upon the amount of an employee's performance related bonus during maternity leave. At present in the UK, employers can reduce a performance related bonus pro rata by any time spent on maternity leave, although time spent on the current two week CML period cannot be included for these purposes. If the CML period is increased to six weeks, performance related bonuses paid during maternity leave will be higher.

The next step is for the Council of Ministers (representing the interests of the 27 EU Member States) to confirm their position on the new proposals.

Future changes to flexible working and parental leave

The Government has announced that, from April 2011, it intends to extend the right to request flexible working to parents of children under the age of 18. There will then be further consultation on extending that right to all employees (whether or not they have children), and on how to create a system of "flexible parenting" from the early stages of pregnancy.

Currently, only parents of children under the age of 17 (or disabled children under the age of 18) and carers of certain adults have the right to request flexible working. The Government claims that the initial extension of the right to parents of children under the age of 18 will benefit 288,000 employees and will make it simpler to identify whether an employee is eligible to make a request.

Earlier this year, the EU Council of Ministers adopted a new Parental Leave Directive based on a revised EU framework directive. The new directive, which replaces the current Parental Leave Directive, increases an employee's parental leave entitlement from three to four months and member states now have two years to implement this change.

Flexible working will clearly continue to be an interesting and dynamic area of law for some time.

Charlotte Davies is an associate in the employment group at Olswang LLP