In person For the v Respondent — 2022

Mrs Fray worked for the Ministry of Justice and had been on an unpaid career break when she became pregnant. She asked to transition to maternity leave at the end of the break, but the respondent said she was not eligible for Occupational Maternity Pay because she was not in paid service at the relevant time and did not meet the statutory earnings requirement for SMP. The tribunal noted that the claimant was not entitled to SMP and that her complaint concerned the contractual maternity pay element only.

The tribunal first dealt with time limits and held that the act complained of occurred on 29 September 2020, when the respondent gave a definitive response after further enquiries had been pursued. On that basis the claim was presented in time. The tribunal said that, even if time had started earlier, it would have been just and equitable to extend time because any delay was short, the respondent had notice of the discrimination complaint, and the claimant was pregnant or a new mother during the relevant period.

On the merits, the tribunal accepted that women were more likely than men to take longer periods of parental leave and that female employees were more likely to take parental leave directly after a career break. However, applying Capita Customer Management Ltd v Ali and Hextall v Chief Constable of Leicestershire Police, and also referring to Price v Powys County Council, the tribunal held that women on maternity leave were materially different from men or women taking shared parental leave and could not be placed in the same comparison pool for section 19 purposes. Because the claimant could not make the necessary comparison, the indirect sex discrimination claim failed.

For completeness, the tribunal said that if it were wrong on comparators and pool, the respondent had a legitimate aim of rewarding recent paid service and the exclusion of employees who were not in paid employment and could not meet the earnings test was a proportionate means of achieving that aim. It rejected the submission that compliance with the Civil Service Management Code was itself a standalone justification, but still concluded that the justification defence was made out. No compensation was awarded.