Special leave for COVID absence

The Employment Appeal Tribunal (EAT) has found that a policy requiring employees to use up accrued time off in lieu (TOIL) and annual leave before being granted further (special) paid leave for COVID-related absences was not discriminatory, either by way of indirect sex discrimination or discrimination arising from disability.

Mr Michael Cowie and Others v Scottish Fire and Rescue Service [2022] EAT 121

Facts

During the COVID-19 pandemic, the Scottish Fire and Rescue Service introduced a special leave policy whereby employees who were shielding or had childcare responsibilities and could not work, could take special leave and continue to be paid. It was a requirement of the scheme that employees would first use up their accrued annual leave and TOIL before being able to take this leave. 

Two groups of employees, represented by the Fire Brigade Union, claimed that the requirement to use up all TOIL and annual leave was discriminatory; one group claimed that they were discriminated against as a result of a disability (section 15 of the Equality Act 2010 (EqA 2010) and the other complained of indirect sex discrimination (section 19 EqA 2010), arguing that this gave rise to a particular disadvantage for women. The substance of the complaint was that this policy (which was more likely to be accessed by women looking after children and people with health conditions), meant those individuals has lost the right to freely choose when to take their TOIL and annual leave.

The employment tribunal dismissed the claims for indirect sex discrimination but found that there was unfavourable treatment arising from disability. However, the employment tribunal did not find it appropriate to make an award of damages and could not see any basis for an award of damages for injury to feelings.

The employer appealed the decision to uphold the disability discrimination claims while the claimants appealed against the dismissal of the indirect sex discrimination claims and the decision to award no compensation.

EAT decision

The EAT found that the claimants had suffered no disadvantage under section 19 EqA 2010 and no unfavourable treatment, for the purpose of section 15 EqA 2010. The ability to take the special paid leave amounted to favourable treatment and the condition that the employees must use accrued annual leave and TOIL did not detract from the fact that the special paid leave policy was favourable overall. The policy was not less favourable, and the claimants not disadvantaged, just because it could have been even more favourable without the conditions imposed.

The Birketts View

Employers have often been reluctant to provide their employees with enhanced benefits for fear of indirectly excluding or disadvantaging a specific group of employees. This decision will be of some relief to employers who want to give a benefit to their employees that they would not otherwise have enjoyed.  Even if conditions are attached, these cannot be separated out from an overall favourable benefit they enjoyed.  

This decision also provides some clarity on issues arising from COVID-19. One of the difficulties for practitioners when advising on matters relating to COVID-19, and in particular the policies and procedures adapted by employers, has been the lack of clear direction and case law in this area. This decision goes some way in providing employers with guidance on strategies for dealing with similar issues moving forward.

For further information or advice on the issues raised in this article, please contact Liz Stevens in our Employment Team.