MATERNITY LEAVE

Hoyland v Asda Stores Ltd

EAT(Sc): Bean J, Mr J M Keenan and Dr W M Spiers: 22 February 2005

The claimant's employers operated a scheme whereby an annual bonus was paid to employees based on the sales achieved by the workforce as a whole and the bonus paid to an employee absent for eight consecutive weeks or more was reduced pro rata. In 2002 the claimant went on maternity leave and was absent for 183 days in the year including 18 weeks of ordinary maternity leave. The bonus paid to her was reduced to reflect that absence, and she complained to an employment tribunal that, inter alia, she had been discriminated against on the ground of her sex, contrary to sections 1(1) and 6(2) of the Sex Discrimination Act 1975. The tribunal held that the bonus was a payment regulated by contract and as such excluded from complaint under the 1975 Act by section 6(6); but that the claimant had suffered a detriment within the meaning of section 47C of the Employment Rights Act 1996 in respect of the employers' failure to pay her a bonus for the two-week period of compulsory maternity leave, though the tribunal rejected her claim in so far as it related to other maternity leave as being "wages or salary" excluded under regulation 9 of the Maternity and Parental Leave etc Regulations 1999.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) For the purposes of discrimination contrary to the Sex Discrimination Act 1975, a woman was not entitled to receive full pay while on maternity leave as though actually working, and the entitlement to the bonus accrued during the period of the claimant's maternity leave, it being immaterial when payment was actually made. The bonus was a payment in recognition of work undertaken by the workforce during the period of that leave and a proportionate reduction to reflect absence on ordinary maternity leave was not discriminatory; and the bonus was, as the tribunal found, a payment regulated by the claimant's contract of employment and excluded from the protection of section 6(2) of the 1975 Act by section 6(6).
(2) The bonus, being paid in recognition of work undertaken by employees, was paid as part of the employee's "wages or salary" within the meaning of regulation 9(3) of the Maternity and Parental Leave etc Regulations 1999 and so was excluded, by regulation 9(2) and section 71(5) of the Employment Rights Act 1996, from the protection provided to employees on ordinary maternity leave. Accordingly, an employer's failure to pay a woman on maternity leave wages, salary or a bonus which she would have earned had she been at work could not be a "detriment" for the purposes of section 47C of the 1996 Act, and the employment tribunal had been correct to hold that, with the exception of the fortnight of compulsory maternity leave, the claimant's employers did not act contrary to section 47C by reducing her bonus.

The appeal was dismissed.

Appearances: Brian Napier QC (Equal Opportunities Commission) for the claimant; John Hand QC and Paul Gilroy (Solicitor, Asda Stores Ltd) for the employers.