Equal employment rights for mothers and fathers or just a myth?
There have been two recent employment tribunal decisions regarding mothers’ and fathers’ employment rights which have hit the headlines. This blog takes a look at the circumstances of these cases and considers why achieving equal rights for mothers and fathers who want to work and share childcare responsibilities remains a challenge.
The first decision of note is the case which saw two members of EasyJet’s Bristol based cabin crew successfully claim that they were discriminated against on the grounds of their sex. The tribunal held that the women had been unfairly indirectly discriminated against because EasyJet had failed to offer appropriate arrangements which would have allowed them to continue to breastfeed after returning to work from maternity leave.
The women asked for shorter shifts to allow them to continue to breastfeed by expressing milk either side of their shifts. This was not allowed (on the basis that there was a risk that the shifts would overrun) and curiously they were instead given unrestricted duty days of 12 hours. This decision was made regardless of medical opinion indicating that there could be an increased risk of mastisis as a result of the women being unable to express milk for a significant period of time.
Once the tribunal claim was lodged, ground duties were instead offered to the women for a period of six months, on the basis that breastfeeding after the first six months is simply a choice. The tribunal found that the solutions offered by EasyJet were unworkable and led the women concerned to suffer a detriment. The tribunal said that EasyJet should have either reduced the women’s hours, offered them alternative duties (for an unrestricted period of time) or suspended them on full pay.
Although this decision is not binding on future employment tribunals, it will be persuasive, not least because it is being heralded by those in favour of workers’ rights as a landmark ruling. This case highlights the importance of employers carefully considering requests made by employees for altered working arrangements, whether related to breastfeeding or some other aspect of pregnancy or childcare. This decision highlights the need to carry out risk assessments where appropriate and consider flexible working options. Offering so called ‘solutions’ is all well and good, provided that they are actually workable and do not lead to employees suffering a detriment as a result, even indirectly.
The second decision, again in the transport industry and this time involving Network Rail, involved a claim from a father that he had been unfairly discriminated against by being treated less favourably than a comparator (in this case, his wife) in relation to an application for shared parental leave. Mr & Mrs Snell who both worked for Network Rail, planned to share parental leave following the birth of their child, with Mrs Snell taking the first 27 weeks off and Mr Snell then taking the following 12 weeks. Mr Snell was told that he would only receive the statutory rate of pay during the period of leave whereas Mrs Snell was entitled to 26 weeks off at full pay.
By the time of the hearing, it was no longer in dispute that Network Rail’s policy was discriminatory and Network Rail took the decision to reduce women’s entitlement to the statutory payment only “to ensure fairness”. This has resulted in equality but it is perhaps not the solution that employees would have hoped for.
These cases illustrate that although parliament appears to recognise the need for equality in employment and new legislation such as shared parental leave has recently been introduced in an attempt to bridge any gaps, employers are arguably still failing to recognise the need to allow parents to balance work and family life. It will be interesting to see how the law develops over the next few years and whether the move towards family friendly practices does really help women (and men) to overcome some of the challenges which do still exist in the workplace.
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