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Issue 86 (February 2004)
In the news
Action on ballots
Protection racket
Second generation TUPE
Getting old with TUPE
Advance notice
Baby boom
It's been a bit of a battle over the years, but women on maternity leave are now protected by the law in a number of ways. That does not mean that employers, even large employers, do not still make serious mistakes in the way they treat women who take time off work to have children.
Take the case of Visa International Service Association v Paul (IRLR 2004, 42). Mrs Paul had been employed as an administrator for Visa since 1989 in the card design section, and had expressed an interest in moving to the dispute resolution section.
In July 2000 she went on maternity leave, during which time the company reorganised the department and created two new posts. Mrs Paul said she wasn't told of the changes and should have been given the chance to apply.
The company said she had been told about it by a work colleague and that, anyway, she didn't have the right experience. In December she was told that it had been filled. Mrs Paul lodged a grievance which was not dealt with to her satisfaction and she resigned on January 2001.
She brought claims for unfair dismissal, wrongful dismissal, sex discrimination, pregnancy-related detriment and pregnancy-related dismissal. Visa promptly counter-claimed that because she had resigned, she owed the company her enhanced maternity benefit.
The tribunal agreed with her. It said she hadn't been notified of the developments in the company, and that because Visa was in breach of the term of trust and confidence by failing to keep her informed, she was entitled to claim constructive dismissal.
And because it was related to maternity leave, the dismissal was automatically unfair (ss98(4) and 99 of the Employment Rights Act). The fact that the employers had failed to notify her was deliberate and amounted to a pregnancy-related detriment.
It dismissed the counterclaim because Mrs Paul had not left of her own free will. Even worse for Visa, it said that lodging the counterclaim amounted to an act of victimisation given that two other women had left and had not been asked to pay it back.
And it upheld her claim of direct sex discrimination on the basis that she had not been kept informed of changes, simply because she was on maternity leave. Mrs Paul received almost £26,000 - nearly £13,000 for her loss because of sex discrimination, £8000 for injury to feelings and £5000 for victimisation.
The EAT agreed with the tribunal on the following grounds:
that Visa had breached the implied term of mutual trust and confidence, entitling her to claim constructive dismissal, by failing to notify her of the vacancy which undermined her trust and confidence in Visa
that Visa had victimised her by making a counterclaim to recoup her enhanced maternity benefit, when two other women who had not brought proceedings, had been treated differently.
The EAT also said that the tribunal should have made a basic award for unfair dismissal, despite the fact that she hadn't made that claim at the remedies hearing. It had also made the mistake of calculating her loss of earnings on gross, instead of net, income; and in including the deductible childcare costs for which she had had to give credit.