As a result of a restructure I recently lost my job in a local authority. I have been redeployed into a lower grade post with 18 months payment protection at my higher salary. This started before my maternity leave of one year. I have requested that my payment protection is delayed and runs when I return from work as I will not be getting any benefit from it whilst earning SMP. I have received a response today from personnel that says they will not be extending it as as I requested as it is designed to enable you to prepare for a lower salary and I still have 18 months to do this (although in my view I won’t be getting any benefit from the pay protection and will miss one year of the higher salary). They have said that in other circumstances if someone was off sick and had reached the end of their paid sick period, they wouldn’t extend it for them. Is this indirect sex discrimination? I won’t be getting a year’s worth
of that higher salary and also I am not really in a position to prepare for lower earnings by applying for other jobs as I am going to be on maternity leave caring for my new baby.
This appears to be indirect sex discrimination. A person is indirectly discriminated against when their employer applies some sort of criteria/practice or provision to all staff but that criteria/practice or provision puts people of a certain sex at a disadvantage. In this case, the practice is that the payment protection period will not be extended for people absent from work without pay or on reduced pay. This puts women at a disadvantage because they are more likely than men to take extended breaks from work due to maternity leave. Your employer has a defence to this claim if they can show that the criteria/practice or provision is a proportionate means of achieving a legitimate aim. I believe that it would be hard for them to run this defence.
In relation to how long your payment protection should be extended for, you need to take into account how many months you will be paid at full pay during your maternity leave e.g. if you receive full pay for three months and take 12 months maternity leave, then your payment protection should be extended for nine months rather than 12 months.
At this stage you need to raise a formal grievance in relation to the extension of your payment protection and explain that you believe their practice indirectly discriminates against you. If the grievance process does not resolve the issue then you should consider submitting a claim for sex discrimination. You could also resign and claim constructive unfair dismissal. Before submitting a claim or resigning you should take further legal advice. Bear in mind that a claim for discrimination needs to be submitted within three months of the act of discrimination i.e. from the date when you were first told that they would not extend your payment protection period due to your maternity leave.
*Sarah Calderwood assisted in answering this question.