Employers who put in place advantageous leave policies for those needing to shield or look after children during the pandemic lockdowns will not be liable for discrimination claims just because the policy could have been even more favourable.
In Cowie v Scottish Fire and Rescue Service, employees were offered a new type of discretionary paid leave to cover Covid-19 related absences, but were required first to use up any accrued annual leave or TOIL they had. The Employment Appeal Tribunal rejected claims that this amounted to indirect sex discrimination or unfavourable treatment in consequence of disability. The 'treatment' was the offer of this new type of special leave including its preconditions, which was clearly favourable even if it could have been more generous. The first instance tribunal had been wrong to separate the preconditions from the benefit itself in considering whether there was less favourable treatment.
The ruling follows an earlier judgment of the Supreme Court in Williams that permitting a disabled employee to take ill health early retirement, with a pension based on hours immediately pre-retirement, could not be viewed as unfavourable treatment simply because the employee had reduced to part-time hours as an adjustment for his disability. It provides welcome reassurance to employers designing policies aimed at addressing the needs of particular groups of employees that their chosen conditions for accessing the benefit will not be unlawful simply because they could have been even more favourable.
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