Iverson v P&O European Ferries (Dover) Ltd, Industrial Tribunal 15 July 1996, case No: 3172/194 (unreported)

Crees v Royal London Insurance, EAT, October 1996 205/96 (unreported)

Can a woman on maternity leave compare her pay and contractual benefits with those of male colleagues on sick leave for the purposes of equal pay and anti-discrimination legislation? How far can a woman take the "sick man comparison"?

In Iverson v P&O an Industrial Tribunal has helped clarify the European Court of Justice judgment in Gillespie [1996] IRLR 214. Ms Iverson was absent on maternity leave, but under her contract of employment was not paid profit related pay for the period of her maternity leave, nor did she accrue holiday entitlement.

She would have earned both holiday entitlement and PRP if she had been at work or on sick leave. The IT held that the Equal Pay Act 1970 applied and she had received less favourable treatment than her male comparator.

The man would have received full profit related pay and holiday entitlement had he been on sick leave. The IT held that an equality clause must be implied into her contract of employment to provide her with the right to full holiday entitlement and profit related pay that would have otherwise accrued during her maternity leave.

The IT also found that the employers were not able to establish that the variation in her contract was due to a genuine material factor, other than a difference of sex, as neither a man on sick leave nor a woman on maternity leave was contributing to the profit of the company during their absence. The IT said the employers had breached both the Equal Pay Act 1970 and Article 119 of the Treaty of Rome.

The Sex Discrimination Act 1975 did not apply as the benefits claimed constituted a payment of money which is excluded under the Sex Discrimination Act. If the decision of Iverson is followed by other tribunals it may hold good for other contractual benefits in addition to PRP and holiday pay.

Maternity rights have also been considered recently in relation to unfair dismissal. In Crees the Employment Appeal Tribunal found that in the absence of any more preferable contractual provisions, the statutory right to return to work following extended maternity leave requires a physical return to work in the ordinary sense of language, in addition to complying with the notice provisions.

Since Mrs Crees had not physically returned due to ill health she had not been dismissed, and therefore could not claim unfair dismissal. Mrs Crees had postponed her return to work at the end of the extended maternity leave period and had fully complied with all the notification requirements, but ill health continued to prevent her return.

Although she sought to delay her return, and sent another sick note to her employers, she was told she had forfeited her right to return. She argued that her compliance with the notice requirements, and submission of a sick note, amounted to a valid exercise of her return to work which entitled her to protection against unfair dismissal. Leave to appeal to the Court of Appeal is pending.