The employer in Interserve FM Limited v Tuleikyte had a policy of treating as a leaver anyone who had not received pay for the last three months. The claimant, who took maternity leave in June 2013, did not meet the earnings threshold for statutory maternity pay and as a result received no pay from her employer once she had started maternity leave. After she had received no payment for three months, the policy kicked in and resulted in her being issued with a P45 with a leaving date of June 2013. At the same time, six other employees were also treated as leavers, although it was not clear what the reason was for their lack of pay.

When the claimant told her manager that she was on maternity leave it was agreed that she would complete a backdated new joiner form when she returned. However, she did not return from maternity leave and her leaving date was not amended, even though her actual termination date was May 2014. This had very severe consequences for her in terms of lost benefits.

The Tribunal upheld her claim of direct maternity discrimination – the automatic result of applying the policy was that she was treated unfavourably because she was on maternity leave. However, on appeal, the EAT said that this was not the correct approach.

Courts and tribunals have identified two types of maternity discrimination cases: those where the facts are inherently discriminatory – "criterion" cases; and others where the reason for the discriminatory treatment is not immediately apparent and it is necessary to look at the employer's conscious or subconscious thought processes to see if the maternity leave was a significant influence – "reason why" cases. The EAT decided this was a "reason why" case. The policy was, on its face, neutral and was not targeted at women generally or women on maternity leave. Women on maternity leave with sufficient earnings to qualify for SMP would be unaffected; on the other hand employees on long-term sick leave without earnings to qualify for statutory or contractual sick pay would be caught by the policy. The Tribunal should have considered the thought processes involved in the decision to have the blanket policy; the case was sent back for this to be done.

The case illustrates that even if being on maternity leave is the context for unfavourable treatment, this does not inevitably mean the treatment is "because of" maternity. Although the facts here were unusual, the principle applies to other situations; in Sefton Borough Council v Wainwright a couple of years ago the EAT decided that the failure to offer a newly created role to an employee on maternity leave made her redundancy unfair but was not necessarily maternity discrimination.