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COVID Special Leave Policy Was Not Unfair, EAT Finds

on Friday, 02 September 2022.

In a recent case, the Employment Appeal Tribunal (EAT) found that preconditions in a 'special leave' policy did not amount to unfavourable treatment.

What Were the Facts of the Case?

In Cowie and others v Scottish Fire and Rescue Service, prior to the COVID-19 pandemic, the Scottish Fire and Rescue Service had introduced a 'special leave' policy in an attempt to help employees balance their work/life responsibilities. Under the policy, employees were entitled to a non-contractual benefit allowing them to take 'special leave' where a childcare responsibility impacted their working life.

During the pandemic the Service extended the policy by allowing staff to take special leave for COVID-related absences, as long as all time off in lieu (TOIL) and annual leave had been exhausted.

Two groups of employees brought claims in respect of the policy. One group argued it was indirectly discriminatory on the grounds of sex, and the other claimed discrimination arising from a disability. The claimants argued that they were subject to unfavourable treatment as they had to use their accrued TOIL or annual leave whilst they unable to work during the pandemic.

What Did the Tribunal Decide?

The Tribunal dismissed the indirect sex discrimination claim as there was no evidence that the policy caused a group disadvantage to women.

The Tribunal upheld the claim of discrimination arising from a disability, although did not award the claimants any compensation. It held that staff who were forced to use up annual leave whilst shielding, and who lost their flexibility around when to use their TOIL, suffered unfavourable treatment because of something arising in consequence of a disability. However, there was no evidence the claimants had suffered any injury to feelings, so no compensation was awarded.

The employees appealed against the indirect sex discrimination finding, whilst the Service appealed against the discrimination arising from a disability finding.

What Did the EAT Decide?

The EAT found that there was no unfavourable treatment. It was not discriminatory for staff to have to use up accrued holiday and TOIL before qualifying for special leave. For the purposes of both claims, the special leave policy was favourable treatment. The fact that it could have been more favourable, had the conditions around TOIL and annual leave not been attached, did not make it unfair.  

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What Can Employers Learn from This Decision?

This case demonstrates that advantageous treatment will never be unfavourable, even if it could have been more advantageous than it was. Employers are entitled to apply eligibility criteria to discretionary benefits, although individual advice should be sought if there are any concerns around the fairness of a proposed policy.


For more information regarding COVID special leave policy, please contact Rory Jutton in our Employment team on 0117 314 5286, or complete the form below.

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