The Employment Appeal Tribunal (EAT) has held in Cowie and ors v Scottish Fire and Rescue Service that an employer's special paid leave policy during the pandemic, introduced for employees who were unable to work because they were shielding or for childcare reasons, did not give rise to discrimination.
The Scottish Fire and Rescue Service (SFRS) introduced a paid special leave policy. Under the policy staff continued to be paid, but first they had to use up any accrued time off in lieu (TOIL) and annual leave. The claimants brought claims of unfavourable treatment because of something arising from a disability and indirect sex discrimination in relation to the policy.
The tribunal found that the unfavourable treatment in question was the removal of the flexibility and choice of taking TOIL and annual leave at a time which suited the employee. This was unfavourable treatment arising from a disability. It was also capable of placing those claiming indirect sex discrimination at a particular disadvantage, but the tribunal found that the necessary group disadvantage to women had not been established.
On appeal the EAT looked at the issue of the alleged unfavourable treatment. It found that the requirement to use accrued TOIL and/or annual leave at a time that was not of the employee's choice only arose when the claimants sought to access paid special leave. The tribunal had erred by separating out the conditions of entitlement from the benefit itself. As a result the something arising in consequence of the claimants' disabilities was not actually the use of the paid special leave policy, but the claimants' inability to attend work. The treatment could not be said to be unfavourable to the claimants as it provided them with an entitlement to paid leave on an indefinite basis. The conditions for entitlement could not detract from the favourable nature of the treatment. As a result there was no unfavourable treatment arising from a disability.
Take note: The decision in Cowie makes it clear that treatment which confers an advantage cannot be unfavourable. Sometimes the relevant treatment that the tribunal will have to consider will not actually be the same as the treatment complained about by employees. It is important to analyse what the relevant treatment is before going onto consider whether the treatment is unfavourable, and the conditions which attach to the benefit should not be artificially separated from the benefit itself.
