However it is not sex discrimination to dismiss for a maternity related absence after the end of maternity leave, if a man with the same absences would have been treated in the same way. It would have been reasonable to leave his partner and the baby for a few minutes to make a quick phone call. Employers should treat employees with post natal depression with sensitivity. While she was on leave, the employer decided to close some of its offices (including London) and transfer work to four new call centres in Cheltenham, Burnley and Northern Ireland. An employee who is made redundant on maternity leave is entitled to be offered a suitable available vacancy with her employer (or an associated employer) with terms and conditions which are not substantially less favourable. less favourably on the grounds of the pregnancy of a woman who is the claimant’s partner, or otherwise associated with him? EWCA Civ 900 The intended commissioning mother, who was not pregnant herself but has an infant in her care and possibly also breast feeds it, needs protection when she starts caring for the child and assumes the role of mother. View our privacy policy, cookie policy and supported browsers. However the employer felt that that their approach was legally necessary in order to ensure that the female employee did not lose out by her maternity absence and to avoid the risk of a sex discrimination claim from her. Ali accepted that in the two weeks after the birth, he received his paternity leave at full pay, while his wife received compulsory maternity leave to help her physically recover. The employer did not pay her for the whole of February and March. or. Proposed Changes to Paternity Leave Laws. With regard to indirect discrimination the employer could justify its policy as a proportionate means of achieving a legitimate aim. Until further clarification, employers should assume that the Equality Act 2010 does cover associative discrimination for maternity and pregnancy, as employers do not want expensive claims. Employers who wish to offer enhanced maternity pay but only statutory shared parental leave pay may therefore be able to justify this as being a proportionate means of achieving a legitimate aim as long as they do not use cost saving alone as a factor to rely upon. Key case: In Visa International Service Association v Paul, the EAT held that an employee was constructively dismissed when her employer failed to notify her, while she was on maternity leave, of a newly created post in her department in which the employee was interested, and considered herself well qualified for. An employment tribunal has ruled that a male employee was subjected to sex discrimination when his employer did not allow him to take additional paternity leave at full pay. Details of the alternative jobs were sent to the consultant but she showed no interest in any of them and she was made redundant. UK law will therefore soon apply equal rights for parents through surrogacy – both straight and gay couples will have paid time off work to take care of their newborn surrogate children. When the criteria were applied, the female associate was still on maternity leave and therefore had no current client files which could be measured so she was given the maximum score for this criterion. His female colleagues on maternity leave were entitled to 14 weeks at full pay and he asked for the same treatment. Although certain aspects of the law concerning discrimination against those associated with pregnant women are unclear, a careful employer will avoid any claims arising altogether. Employers face considerable difficulties in situations which require using redundancy scoring to choose between a man and a woman on maternity leave. If an employee ignores their communication obligations the right to claim automatically unfair dismissal is lost. Although the employer later agreed to allow her paid leave under their adoption leave policy, the employee brought claims of sex and associative pregnancy and motherhood discrimination with regard to the original refusal of her request. An employee’s contract said he must tell his line manager, or leave a message on the company's absence line about any absences due to illness or injury by no later than 30 minutes after he should have started work and thereafter keep in regular contact about the length of absence. The employer offered a career break, reduced hours, unpaid leave and extended holiday, but refused to give her maternity leave even though she had been employed for more than ten years. The surrogate who gives birth to the child remains the legal mother upon birth until a Parental Order is in place. The employment tribunal held that neither claim would succeed. Generally employers cannot move straight to dismiss an employee in similar cases over an inadequately communicated emergency absence. This had to be determined by reference to the particular fact in each case. 6776955. The direct sex discrimination claim failed because an employer is entitled to take into account absence after the end of the period of maternity leave in a decision to dismiss. However employees must tell their employer the reason and expected length of their absence, as soon as it is reasonably practicable. Through induced hormone treatment, she began breastfeeding the child just a few hours after the child’s birth. A maternity policy which places men at a disadvantage and is potentially indirectly discriminatory may be objectively justified by the need to recruit and retain women although each case will depend on its own facts. Female employees effectively do have priority over other employees who are at risk of redundancy for other available vacancies, even if the woman is on maternity leave. Where the surrogate is married or in a civil partnership, the surrogate’s partner is the second legal parent unless there is appropriate evidence to for the partner not consenting. (See. More information can be found in our Cookies and Privacy Policy. The employee argued that her dismissal was unfair and that it was either direct pregnancy or sex discrimination. If a man brings a sex discrimination in such circumstances the Equality Act 2010 provides that no account should be taken of ‘special treatment’ afforded to women in relation to pregnancy or childbirth. However the intended (commissioning) mother does not currently have maternity rights if involved surrogacy arrangements in the UK. Registered in England and Wales no. With reference to the Equal Treatment Directive is it unlawful discrimination to treat a man: ​[2011] IRLR 448​Issue: Redundancy – maternity leave cover​. The Pregnancy Workers Directive does not protect commissioning mothers who do not have to have maternity leave pursuant to the directive, even if they breastfeed the baby following the birth. It commented that making it harder for fathers to qualify for the leave than mothers was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a secondary parental role. Until the new UK legislation come into force in 2015, the ECJ decision does not give support to any mothers denied leave who wish to bring discrimination claims against their employers (although previous cases do). Each state's laws differ in the amount of paternity leave they offer and how much is paid. A job centre employee took ordinary maternity leave of six months followed by six weeks’ annual leave. In 2016, men are being encouraged to play a greater role in caring for their babies. It was abolished in April 2015 and has subsequently been replaced with shared parental leave. The Employment Tribunal decided he had been directly discriminated against as a mother taking maternity leave during the same period would have received full pay. The ‘special treatment’ afforded to women must therefore go no further than what is reasonable and proportionate. Surrogacy laws are very complicated for employers to understand. From that point onwards she is in a situation comparable with that of a biological mother. Her claim was dismissed, but she appealed claiming that the tribunal was wrong in its interpretation of Regulation 10 of the Maternity and Parental Leave Regulations 1999. The unpaid leave is in order for the employee to put arrangements in place. Discover the power of XpertHR employment law guidance and best practice at your fingertips. The employer contended that they were both dismissed for not processing scallops quickly enough.