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Employment Law Case Update: FM ltd v Tuleikyte

Aug 31, 2017

Sometimes the best laid HR plans can backfire with unfortunate results. What HR professional would ever want to unhouse and impoverish a new mother and baby?

In the case of Interserve FM ltd v Tuleikyte, the employer operated a policy where employees who had not received any payments for three months were then treated as ‘leavers’. Ms Tuleikyte began her maternity leave in June 2013, and as she did not qualify for statutory maternity pay due to her earnings, she received no pay from her employer once she started maternity leave.

Once she’d received no pay for three months the policy kicked in and in November 2013 she was issued with a P45 and treated as a leaver. Ms Tuleikyte told her manager she was on maternity leave, and it was agreed she would complete a backdated new joiner form when she returned.

Ms Tuleikyte did not return from maternity leave and her leaving date was not amended, even though her actual termination date was May 2014. This resulted in Ms Tuleikyte losing her government benefits, including her accommodation.

Ms Tuleikyte bought a claim for pregnancy and maternity discrimination. The Employment Tribunal upheld her claim saying that an automatic consequence of applying the policy was that she was treated unfavourably because she was on maternity leave. On appeal the Employment Appeal Tribunal held this was not the correct approach.

The EAT decided that this was a case where the reason for the discriminatory treatment is not immediately apparent, and it required looking at the employer’s subconscious thought process to see if the maternity leave was a significant influence. In this case, the policy seemed neutral and not targeted at women whether on maternity leave or not. Women on maternity leave whose earnings qualified them for SMP would not have been affected by the policy. The EAT stated that the ET should have considered the thought process in having a blanket policy, and the case was therefore sent back to the ET to look at that reasoning.

We don’t know the full outcome of the case yet. What this case shows is that even if being on maternity leave is the context for unfavourable treatment, this does not mean it will definitely be treatment ‘because of’ maternity and therefore amounting to discrimination. However, employers should be careful when applying policies that could potentially result in unfavourable treatment for women on maternity leave. A way to prevent this is to review policies regularly.

This article is from our weekly Employment Law Newsletter published on 31/08/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.