It is rare that we see a case taken under the Maternity Protection Acts 1994 & 2001 as normally cases are taken under Equality legislation or under the Unfair Dismissals Act, however a recent appeal from a Rights Commissioner decision has seen such as case end up before the Employment Appeals Tribunal (EAT).
This case is noteworthy as it examines the issue of remuneration and annual leave to be paid whilst an employee is on Maternity Leave.
The case concerned, Employer -v- Employee (P1/2012), an employee who worked in a Company who had an agreement with workers that instead of the 1987 Agreement for National Recovery where all employees would work a 39 hour shift, the employees would all work 40 hours per week as the business operated 24 hours a day with employees working three shifts.
As compensation the employees would receive up to a maximum of 6.5 paid days a year as they were working an extra one hour per week (1 hr x 52 weeks = 52 hrs/8 hrs per day = 6.5 days). Four of the days were to be taken at Easter, and the rest at the discretion of Management. This case revolved around the fact that this employee did not receive this compensation whilst on Maternity leave as the employer ruled that she did not actually work these hours and so was not due the time off.
Remuneration or Annual Leave?
The Tribunal looked at this and had to decide if the paid time off for the extra hour per week is "remuneration" or "annual leave". According to Section 22 of the Maternity Protection Act 1994 (as amended by Section 14 of the Maternity Protection (Amendment) 2004), if the time off in lieu is ruled as remuneration the Employer would succeed, and if it is annual leave the Employers appeal would fail. The Rights Commissioner ruled it was annual leave, as the Employer failed to appear at the hearing and so it was appealed to the EAT.
What is Remuneration?
The Tribunal first sought to establish what is regarded as "Remuneration" and looked at S&U Stores Ltd. -v- Lee [1969] 2 All E.R. 417, 419, which was "Remuneration is not mere payment for work done but it what the doer expects to get as the result of the work he does in so far as what he expects to get is quantified in terms of money". The Tribunal also considered that this may need to be widened due to the case at hand and looked at Section 7(3) of the Unfair Dismissals Act 1977 which defines remuneration as follows "Remuneration included allowances in the nature of pay and benefits in lieu of or in addition to pay".
Determination
The Tribunal determined that this was an arrangement between the union and the Company, and as the Company could not pay the employees for the hours they worked as it would breach the 39 hour working week they had to give some other benefit to the employees for the extra hour worked each week.
The Tribunal found that the extra paid days off known as lieu days were what the doer expects to get as a result of the work done rather than as an accrual of annual leave, and so must be considered a benefit in lieu of pay and therefore remuneration. The result being the Tribunal finding in favour of the Employer.
You will see from the above case that the Tribunal had to widen its view of remuneration and combine two definitions to determine that it was in fact remuneration and not annual leave. A very useful case for employers when looking at benefits payable to employees whilst on Maternity Leave.
Further Reading on Maternity Leave
