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Are you entitled to less on maternity leave, than you have been advised?

Peninsula Business Services Ltd v Donaldson [2016] UKEAT/0249/15

Guidance provided by HMRC on salary sacrifice schemes has been proven to be incorrect in the case above. An employer is not obligated to continue to provide childcare vouchers under the scheme, when their employee is on maternity leave, this advice should no longer be followed.

In this case the Employment Appeals Tribunal (EAT) held that it was acceptable for Peninsula to include childcare vouchers under a salary sacrifice scheme as part of the employee’s remuneration. This meant that the vouchers did not have to be provided during maternity leave. It was not against policy for the employer to stop providing childcare vouchers during maternity leave as they are only required to maintain terms and conditions of employment and this does not extend to remuneration. In this case the vouchers were provided as a salary sacrifice, had they been provided on top of salary, the employer would have been required to continue the scheme throughout the period of maternity leave. The EAT held that the HMRC guidance on childcare vouchers was therefore incorrect. However maternity discrimination occurs in subtle ways which can be difficult to prove as discrimination, it is better to be sure by seeking the advice of an employment lawyer.

The Equality Act 2010 introduced various measures to tackle gender inequality in the workplace including pregnancy and maternity becoming protected characteristics. This widened the definition of “employee” and protected against discrimination against those pregnant and within the definition of maternity. Further to this the Equality Act (Gender Pay Gap Information) Regulations which comes into force April 2017, will ensure that it becomes mandatory for companies with over 250 employees to publish an annual report on the gender pay gap within the company.

Top tip: Pregnancy and maternity discrimination in the workplace has become a rising issue, possibly due to the increase in the number of women in the workforce. Tribunal fees have also been recently introduced, providing employers with a blanket to discriminate as less claims are likely to be made. The financial crisis of late has hit such vulnerable groups the hardest as affordability to bring a claim has become more costly and more stressful. It is important to seek proper legal advice if you feel it is possible you may have been wrongly discriminated against.

For advice on employment matters please contact Andinee Perry a solicitor in our employment team.