Unlawful Discrimination / Maternity Leave
Rachael Lloyd
Posted on 24 Nov 2014

Employment Law Update – Unlawful Discrimination / Maternity Leave / Holiday Pay Claims

Police Officers: Maximum Recruitment Age of 30 was Unlawful Discrimination

Vital Perez v Ayuntamiento de Oviedo [C-416/13]

The European Court of Justice ('ECJ') has held that a Spanish law imposing a maximum recruitment age for local police officers was in breach of the provisions of the Equal Treatment Framework Directive. The law did not fall within the exceptions of Article 4(1) ('genuine occupational requirements') or Article 6(1) ('objective justification').

The Facts

The Claimant brought a claim which challenged the age limit of 30 in the recruitment of the local police force of Oviedo, on the basis that it was contrary to the Equal Treatment Framework Directive. The local court could not come to a decision as to whether the age requirement was proportionate, and referred the matter to the ECJ.

The Judgment

The ECJ decided that the maximum recruitment age was contrary to the Equal Treatment Framework Directive, as it failed the test of proportionality.

Although police officers were required to be fit and capable of using physical force, the level of fitness required could not be compared to the 'exceptionally high physical capabilities' required of fire fighters, where an age limit of 30 was lawfully imposed. Potential recruits into the police service were already required to complete physical fitness tests and there was a lack of evidence to show that the imposition of the age requirement was proportionate.

Tips for Employers

The case demonstrates that not every job which requires physical fitness or strength will necessarily justify an upper age limit. However, many cases will centre around the availability of evidence to support such an age limit. If employers do not hold data to substantiate their recruitment criteria, then courts will be reluctant to find that the criteria are justified.

Duty to Offer Suitable Alternative Vacancy to Woman on Maternity Leave

Sefton Borough Council v Wainwright [UKEAT/0168/14]

When a woman is on maternity leave and a redundancy situation arises, she has a right to be offered a suitable alternative vacancy (regulation 10 of the Maternity and Parental Leave Regulations 1999). Failure to comply with regulation 10 renders a dismissal automatically unfair.

The Facts

The Council embarked on a redundancy and reorganisation process. It proposed to abolish both the Claimant's role and that of a male colleague, and replace them with one single post. The Claimant commenced maternity leave in July 2012, after which both she and her male colleague were notified that they were at risk of redundancy. Both individuals were interviewed for the new role, and the Claimant's male colleague was the successful candidate.

The Claimant argued that the Council should have offered her the new role and its failure to do so rendered her dismissal automatically unfair. She also alleged direct discrimination, as she was on maternity leave.

The Council argued that the obligation to offer an alternative vacancy was only triggered once the restructure was complete, and it had been decided who should be appointed to the new role. At that point, the new role was no longer vacant and, therefore, the Council was not obliged to offer it.

The Judgment

The Employment Appeal Tribunal ('EAT') held that the duty to offer a suitable alternative vacancy arises when the employer becomes aware that the employee's role is redundant or potentially redundant. If the duty was not engaged until after a redundancy or restructuring process was complete, this would undermine the purpose of the legislation. Therefore, the Council was obliged to offer the new role to the Claimant in preference to her male colleague, unless it could offer her another suitable alternative vacancy.

Tips for Employers

Prior to this case, there was very little guidance on the regulation 10 duty; therefore, this judgment should provide welcome clarification for employers.

Presidential Guidance on Holiday Pay Claims

It has been reported that the President of the Employment Tribunals will issue guidance, in the coming weeks, regarding claims for holiday pay. This follows the EAT's recent decision in Bear Scotland v Fulton and others [UKEATS/0047/13].

We will keep you updated.