Preconditions for the grant of paid special leave during the pandemic did not amount to discriminatory treatment (Scottish Fire and Rescue Service v Cowie and others)

Where an employer has a paid special leave policy that offers favourable treatment, the preconditions for obtaining that benefit cannot be artificially separated from the benefit itself when assessing whether or not employees have suffered unfavourable treatment or been put at a particular disadvantage for the purposes of discrimination claims under the Equality Act 2010 (EqA 2010), according to the EAT.

Scottish Fire and Rescue Service v Cowie and others[2022] EAT 121

 What are the practical implications of this case?

This judgment is legally interesting because it looks at how ‘treatment’ should be defined for the purposes of claims of discrimination arising from, or in consequence, of a person’s disability and how ‘disadvantage’ should be defined for the purposes of an indirect discrimination claim. It follows the approach set out in Williams and makes it clear that, where an employer offers a scheme that is favourable to those using it, claimants cannot cherry-pick just certain preconditions or consequences of using that scheme, to be viewed in isolation, when seeking to establish unfavourable treatment or particular disadvantage.

Parties should note that employment tribunals are not limited to finding the relevant treatment (or in the case of an indirect discrimination claim, the provision, criterion or practice (PCP)) to be in the precise terms put forward by claimants and, indeed, like the employment tribunal in this case, they may fall into error if they do so.

The subject matter of this judgment is also factually interesting. During the coronavirus (COVID-19) pandemic, the respondent, like many employers, was faced with the difficulty of trying to find a way to support employees who, for reasons of shielding or childcare, were unable to attend the workplace and who were unable to work from home. Its policy was generous in that it offered indefinite special paid leave to employees in that situation, but the special paid leave could only be accessed after the employee had used up any accrued time off in lieu (TOIL) and annual leave. While such a restriction in choice as to when to use TOIL or annual leave could, in general terms, be seen to be unfavourable treatment or a disadvantage, that was not the situation in this context where:

• the preconditions and the scheme were inextricably linked, and
• the scheme itself was clearly favourable treatment and advantageous to those using it.

Essentially, the EAT found that there was no ‘unfavourable treatment’ by virtue of the fact that the paid special leave policy could, hypothetically, have been even more favourable by the removal of the preconditions for entitlement.

This judgment may therefore be of interest to employers who put in place similar schemes during the pandemic, especially if they are facing challenges by employees or unions as to the lawfulness of the terms of those schemes.

Court details

• Court: Employment Appeal Tribunal
• Judge and members: The Honourable Mrs Justice Eady DBE, President, Mr D G Smith and Mr S J W Torrance
• Date: 11 August 2022

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