Eirwen Pierrot examines the recent decision in Interserve FM Ltd v Tuleikyte (UKEAT/0267/16/JOJ), in which the EAT allowed an appeal against the decision of an employment tribunal which had wrongly treated a s.18 Equality Act claim as a “criterion” type case, rather than a “reasons why” type case.
The claimant, Ms Tuleikyte, brought a claim for direct discrimination under s.18 Equality Act 2010 (i.e. direct pregnancy/maternity discrimination) after her employer, Interserve, recorded her as a “leaver” because she had been absent without pay for a period of three months. When Ms Tuleikyte raised this with her employer they acknowledged that this was an error and apologised, however later-on the mistake transpired to have highly detrimental effects.
In recording Ms Tuleikyte as a “leaver”, Interserve had applied to her their general policy of treating all staff who were absent without pay for a period of three months as leavers and erasing them from employment records. However, unlike all staff who were absent for such a length of time, Ms Tuleikyte’s unpaid absence was because she was taking maternity leave and was not eligible to receive statutory maternity pay.
First instance decision
Employment Judge Taylor found that the blanket application of the policy to the claimant when she was absent on maternity leave had the automatic consequence of treating her unfavourably because she was on maternity leave, and that unlawful discrimination was therefore inherent in the blanket policy. The tribunal therefore found that this was enough for it to make a finding of direct discrimination, without the need for it to consider the thought processes of the putative discriminator.
Simler P identified the critical question in the case as being whether the admitted unfavourable treatment of applying the blanket policy to the claimant was “because of” her maternity leave. That required consideration of the reasons or grounds for the impugned treatment.
Simler P reviewed the authorities and the two types of cases that may arise: “criterion” cases, and “reasons why” cases. “Criterion cases” are those in which the criterion is inherently based on or indissociably linked to the protected characteristic. In such cases, its application constitutes the reason for the treatment complained of, and there is no need to look further. However, in Taiwo v Olaigbe the Supreme Court held that in order for that to apply the category of people suffering the disadvantage must coincide exactly with the category of people with the particular protected characteristic. Although that case concerned a direct race discrimination claim under s.13 Equality Act 2010, Simler P found no reason why that approach should not apply in a s.18 case.
Simler P reminded herself that the mere fact that a woman happens to be on maternity leave when unfavourable treatment occurs is not enough to establish direct discrimination. Therefore, in cases that do not involve the application of any inherently discriminatory criterion, a s.18 claim can only succeed if the reason for or grounds of the treatment – whether conscious or subconscious – is pregnancy/maternity.
The EAT found that this was not a “criterion” case as there was not a complete correlation between the criterion applied and the protected characteristic. Women on maternity leave who were eligible for statutory maternity pay, for example, would not be affected by the policy. Other employees who were off for reasons other than maternity, such as long-term sick leave, would be affected. It was therefore necessary for the employment tribunal to consider the mental processes of the putative discriminator, in order to ascertain the “reason for” the treatment. It had not done so and the case was remitted.
This case provides a useful reminder of the difference between “criterion” and “reasons why” cases in direct discrimination claims, and confirms that the approach in Taiwo v Olagibe applies to s.18 claims. It also serves as a useful reminder of the importance of pleading all potentially meritorious alternative claims. It is unfortunate for the claimant that no alternative claim of indirect sex discrimination had been brought (it is not possible to claim indirect pregnancy/maternity discrimination). Simler P acknowledged that the application of the blanket policy “might have a particularly disadvantageous effect on women” and it is difficult to see what possible objective justification there may be for the blanket approach. It appears likely to me, therefore, that notwithstanding the difficulties with the direct discrimination claim, an indirect discrimination claim would most likely have succeeded.