It is well established in law that pregnant women employees or women on maternity leave are entitled to special protection.

But what about women who are not employees? In Fletcher and ors v Blackpool Fylde and Wyre Hospitals NHS Trust and anor (2005, IRLR 689), the employment appeal tribunal (EAT) has said that midwives on vocational training suffered discrimination when their bursaries were stopped during maternity leave

 

What were the facts?

The three claimants were trainee midwives on a vocational training course, made up of academic study at college with practical placements. They were not paid during their training as they were not employees, but they were eligible to receive bursaries.

The bursary scheme stated that if a student was absent during the course, the bursary could be reduced. However, there was no policy in relation to absence because of pregnancy or maternity leave.

The three trainees claimed sex discrimination when two of them ceased to be paid bursary instalments during their absence from training because of pregnancy and childbirth; and one was unable to take time off from training because the payments would have been stopped.

 

What did the tribunal decide?

At a preliminary hearing, the tribunal found that although the women were not "employees" or "workers", they were undergoing vocational training within the meaning of section 14 of the Sex Discrimination Act.

However, at the main hearing, the tribunal rejected the substance of the women's claims saying that they were effectively arguing for full pay during maternity leave and therefore could not rely on the Equal Treatment Directive.

It also said that they had been treated in the same way as anyone else on long term absence from the course, such as people on sick leave.

 

What did the women argue on appeal?

On appeal, the women argued that their claim was not for maternity pay, but was about discrimination in the way their bursaries were paid. But for their pregnancies, they would not have needed to be absent from the course and their bursary payments would have continued.

By stopping the payments, they had been treated less favourably on grounds of pregnancy or maternity, and had therefore been discriminated against unlawfully on grounds of sex under the Sex Discrimination Act.

 

What did the EAT decide?

And the EAT agreed with them. It decided that the tribunal had been wrong to characterise the women's claim as one of pay. The issue was whether there was discrimination in the operation of the bursary scheme, as a facility for training.

In Gillespie v Northern Health and Social Services Board, C-342/93 (1996, IRLR 214), the European Court of Justice made clear that "discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations."

That being so, treating these pregnant trainee midwives in the same way as other trainee midwives who were absent for other reasons (such as sickness) could not be used as a defence to less favourable treatment.

The established test for determining direct discrimination is the "but for" test. In the present case, but for their pregnancies, the claimants would not have been absent. Their absence resulted in the termination of their bursary payments which caused the discrimination.

The employment tribunal was also wrong to say that the trainee midwives could not compare their treatment to the more favourable treatment available to a man on sick leave.

Although it is not necessary for women to make a comparison with a man to succeed in their claim, the decision in Webb v EMO Air Cargo (UK) Ltd (1995, IRLR 645) does not prevent them from comparing their treatment with more favourable treatment afforded to sick men. Otherwise, they would not be able to show that a different rule had been applied in comparable circumstances resulting in discrimination against them.