Claimant v Secretary of State for Health and Social Care

The tribunal found that the Civil Service Compensation Scheme (CSCS) treated all periods of unpaid leave the same way regardless of reason, discounting them from reckonable service. The treatment was not because of sex but because of the application of neutral criteria treating unpaid leave uniformly. Comparison with a man on unpaid sick leave was legitimate and showed no less favourable treatment.

The tribunal held that the Maternity Equality Rule in section 75 of the Equality Act 2010 applies only to periods of paid maternity absence. Unpaid maternity leave does not attract the protection of the Rule. The claimant had no entitlement to be treated better after exhausting paid maternity leave than if she were on other unpaid leave. Non-payment while unavailable for work was not unfavourable treatment.

The tribunal found this was a 'criterion case' not a 'motivation case'. The reason for the treatment was the application of CSCS rules which treat all unpaid leave the same, not the claimant's sex or maternity. There was no evidence that decision-makers were influenced consciously or unconsciously by the claimant being on maternity leave. A male comparator on unpaid leave would be treated identically.