British Airways Ltd v Moore and Botterill [2000] IRLR 296
The decision of the Employment Appeal Tribunal in this case finds that suitable alternative employment for pregnant women suspended on health and safety grounds requires a remuneration package no less favourable than that applying to her normal work.
Ms Moore and Ms Botterill both became pregnant during the course of their employment as pursers with British Airways. Under their terms and conditions of employment they could no longer be employed on flying duties after their 16th week of pregnancy. They therefore accepted alternative work in ground posts. Although their basic pay remained the same, they lost out on flying allowances.
They argued, successfully, that when suspended by reason of pregnancy, section 67(2) of the Employment Rights Act 1996 requires an employer to offer suitable alternative employment with terms and conditions no less favourable than those they would be entitled to under their normal work. The fact that some of the flying allowances represented expenses was not relevant. "We are quite satisfied that it was not necessary, for the purpose of determining liability, for the Tribunal to embark on a breakdown of the various allowances...It is enough...that taken as a whole a considerable part of those allowances represented profit".
So far so good. However, Ms Moore and Ms Botterill also sought to pursue equal pay claims by comparing their situation with male comparators who could be seconded to ground posts to pursue career development, and who would retain these flying allowances.
It might be thought that this would be a classic case where the Article 141 and the Equal Pay Act might apply. Although the decision of the European Court of Justice in Gillespie (1996 IRLR 214) held that equal pay comparisons cannot be made to improve on maternity benefits during maternity leave, nonetheless in later cases the European Court have held that the Gillespie provisions did not preclude a woman from pursuing a case under Article 141 during her pregnancy when she was still working and before she took maternity leave. (Pedersen (1999 IRLR 55) and Thibault (1998 IRLR 399).
Despite this, the Employment Appeal Tribunal decided that Ms Moore and Ms Botterill could not pursue equal pay claims, and that their rights were limited to the "self-contained" maternity codes. They conclude that no distinction could be drawn between a worker absent from work on maternity leave and one who is suspended on health and safety grounds when pregnant and moved to a suitable alternative job.
This aspect of the decision sits uneasily with European law. As it happened, the result did not matter for Ms Moore and Ms Botterill who were successful under the section 67 suitable alternative employment point. However, in another case where a pregnant woman might wish to make an equal pay comparison, we suggest that European law should be preferred so as to allow them to do so, notwithstanding the terms of this curious decision.