Cowie & Ors v Scottish Fire and Rescue Service

EAT, Eady J , Mr D G Smith and Mr S J W Torrance, [2022] EAT 121, 11 August 2022

The defendant fire service was sued by two groups of employees, the first disabled workers who had shielded during Covid and the second women who had faced disruption to childcare arrangements during Covid. The defendant permitted staff to accrue time off in lieu (TOIL) through working overtime and operated a special leave policy which permitted staff who had exhausted TOIL entitlements to request time off to deal with emergencies and unforeseen needs. When Covid 19 first struck the defendant allowed provided paid special leave to staff who were ‘shielding’ and unable to work from home, also to those with school-age children and/or caring responsibilities whose normal arrangements had been disrupted by Covid. In each case staff first had to exhaust their TOIL and accrued annual leave entitlements.

The first group of employees complained that the arrangements amounted to unfavourable treatment for a reason related to disability contrary to s15 EqA. The second complained of indirect sex discrimination contrary to s19 EqA. A tribunal upheld the s15 claim on the basis that the loss of accrued TOIL amounted to unfavourable treatment by comparison with staff who had chosen to receive pay rather than TOIL, and that being required to exhaust annual leave was also unfavourable treatment by comparison with those who had used their holiday entitlement pre-pandemic.  The tribunal did not regard either treatment as justifiable. Another tribunal rejected the s19 claims on the basis that there was no evidence that the PCP of requiring employees to take annual leave and TOIL before being granted paid special leave disadvantaged women, who were no more likely than men to have accrued TOIL or had to take leave to manage childcare difficulties. The EAT allowed the employer’s appeal in respect of the s15 finding and rejected the employees’ appeal from the s19 finding.

On the s15 appeal the EAT ruled that, while the loss of flexibility and choice in terms of when to take accrued TOIL and annual leave could amount to unfavourable treatment, it applied only as a condition of a grant of paid special leave and could not properly be considered in isolation from that benefit. Taken together, the s15 appellants had not been treated unfavourably because (as in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, [2019] ICR 230) the entitlement to special paid leave amounted to “clearly favourable” treatment which did not become “unfavourable” because some staff might not have had to use up any accrued TOIL or annual leave as a precondition. Similarly, as regards the s19 claim, staff were only required to exhaust accrued TOIL and special leave if they wished to benefit from paid special leave and so, as in relation to s15, the overall package of treatment did not subject the claimants to any disadvantage. Further, the tribunal had been entitled on the evidence before it to conclude that there was no evidential basis that those accessing the special leave policy were disproportionately female, not least in view of its acknowledgment that women undertook a disproportionate share of childcare generally.

Appellant/ defendant: Anna Beale, instructed by Miller Samuel Hill Brown LLP

Respondent’/ claimants: James McHugh, instructed by Thompsons

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