D-BRIEF – Employment & Pensions Blog: Employer’s Covid-19 paid special leave policy held not to be discriminatory

In Cowie and ors v Scottish Fire and Rescue Service, the EAT has held that an employer’s paid special leave policy during the Covid-19 pandemic did not give rise to discrimination arising from disability or indirect sex discrimination under the Equality Act 2010.

The Scottish Fire and Rescue Service (‘the SFRS’) introduced a paid special leave policy during the Covid-19 pandemic due to the number of its employees who had to remain at home due to shielding or childcare reasons and were unable to perform their role remotely from home. The paid special leave policy allowed employees to continue receiving pay despite their inability to work. In order to be eligible for the paid special leave, the employees first had to use any remaining annual leave entitlement and any accrued time off in lieu. A number of employees brought claims against the SFRS on the basis of unfavourable treatment arising from disability and indirect sex discrimination.

The ET upheld the claims for discrimination arising from disability, concluding that removing the flexibility and choice for employees to take annual leave and accrued time off in lieu amounted to unfavourable treatment and was capable of placing the employees at a particular disadvantage. However, the claims of indirect sex discrimination were dismissed on the basis that the employees had not established a disadvantage to a particular group of people. Both the employees and the SFRS appealed.

The EAT first considered the SFRS’ appeal and held that the ET had erred by separating out the conditions of entitlement from the benefit itself. The EAT concluded that whilst the SFRS required employees to use annual leave or accrued time off in lieu, this requirement only arose when an employee wished to benefit from the paid special leave. For this reason it found that the pre-conditions did not amount to unfavourable treatment since the policy as a whole provided the employees with an entitlement to paid leave indefinitely and that the conditions for entitlement could not detract from the favourable nature of the treatment. The EAT overturned the ET’s decision and the claims for discrimination arising from disability failed.

In considering the claims for indirect sex discrimination, the EAT held that there was no evidence that a particular group had been disadvantaged by the SFRS’ policy. Further, the EAT held that there was no particular disadvantage when the special leave policy was viewed as a whole, as the provision of paid special leave was clearly favourable by its very nature.  The EAT therefore upheld the ET’s dismissal of these claims.


When considering the introduction of any new policies or procedures, employers should consider the effect of the policies or procedures as a whole and weigh any potential negative impacts/conditions against the benefits. Whilst we hope special leave in the context of Covid-19 or similar is a thing of the past, it is useful for employers to take from this case that advantageous treatment, such as the paid special leave, will generally not be considered to be unfavourable treatment, even if the treatment itself could have been more favourable e.g. paid leave without the pre-conditions.

For more information, please contact a member of the Employment Team.

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