Unfavourable treatment

Employer’s special leave policy during the COVID-19 pandemic was not discriminatory.

During the covid pandemic, Scottish Fire and Rescue Service (SFRS) introduced special paid leave for staff who were unable to work because they were forced to remain at home to shield or provide childcare. However, staff wishing to take advantage of this special leave first had to exhaust their accrued time off in lieu (TOIL) and annual leave. Various staff argued the requirement to exhaust leave and TOIL (‘the requirement’) to access the special leave was discriminatory in nature as it was unfavourable treatment that disproportionately affected disabled people and women. A claim was brought at the Employment Tribunal (ET) by some of these disgruntled staff, backed by their union. 

The ET agreed that the requirement amounted to unfavourable treatment because it removed flexibility and choice. They also agreed that it placed disabled people at a particular disadvantage so the claim of disability discrimination was successful. However, the ET did not agree that the unfavourable treatment particularly disadvantage women, so the claim of sex discrimination was unsuccessful.

SFRS appealed against the ET’s decision that the requirement amounted to unfavourable treatment.  The Employment Appeal Tribunal (EAT) held that the ET had indeed made an error in reaching their decision on what constituted unfavourable treatment by wrongly separating out the conditions of entitlement to a benefit (i.e. the requirement to exhaust annual leave and TOIL) from the benefit itself (i.e. the special leave). The EAT noted that there was no general requirement on the staff to use TOIL and leave at a time of SFRS’ choosing; rather, the specific requirement to exhaust TOIL and leave arose only when the staff sought to access the special leave. These two facts were inextricably linked and the ET should not have dealt with them in isolation in coming to their decision. The EAT set aside the ET’s decision and it will now be considered afresh. 

This is perhaps a lesson in understanding that the employee/employer relationship is one of give and take. The SRFS was offering a generous benefit to their staff albeit a caveat that the employees would have been wise to swallow, given the benefit on offer. 

The judgment in Cowie and ors v Scottish Fire and Rescue Service can be read here.

This post was written by Jack Dooley, Trainee Solicitor at didlaw.