Interserve FM Ltd v Tuleikyte
Ms Tuleikyte brought a claim against her employer, Interserve, for direct maternity discrimination.
Interserve had a policy of terminating any absent employee who had not been paid in the last three months. The policy was automatically applied to Ms Tuleikyte, who was treated as having left the company. It later transpired that Ms Tuleikyte’s unpaid absence was because she was on maternity leave, but was not eligible for statutory maternity pay.
In considering whether an employee is treated unfavourably ‘because’ she is taking maternity leave, the tribunal distinguishes between “criterion cases”, and “reason why cases”. “Criterion cases” are those where a criterion or policy is inherently discriminatory. The application of the policy constitutes the reason for the treatment and the tribunal need not look any further. In contrast, in “reason why cases”, the tribunal must consider the mental process of the alleged discriminator. The tribunal treated this as a “criterion case” and said that the blanket application of the policy was inherently discriminatory. Interserve appealed.
The EAT reviewed the case law on “criterion cases” vs. “reason why cases”. The judge reiterated that just because a woman happens to be on maternity leave when unfavourable treatment occurs is not enough to establish direct discrimination. The EAT said that this was not a “criterion case” as there was no clear correlation between the policy and the protected characteristic. For example, a woman on maternity leave who received statutory maternity pay would not be affected by the policy, but an employee on long-term sick leave would. It was, therefore, necessary for the tribunal to go further and consider the mental processes of the alleged discriminator in order to ascertain the reason for their actions. The tribunal had failed to look at the “reasons why” Ms Tuleikyte was treated unfavourably, so the case was remitted.
This case is consistent with previous case law and serves as a helpful reminder of the difference between “criterion” and “reasons why” cases in direct discrimination claims.
The EAT also said that that an indirect sex discrimination claim may have been possible in this case, but Ms Tuleikyte failed to argue this in in the alternative. The application of the blanket policy may have had an adverse impact on women because they take maternity leave and may not qualify for statutory maternity pay, and, therefore, may be more likely to be disadvantaged by such a policy than their male contemporaries.