Employment Tribunal holds that imposing of ‘pause clause’ constituted pregnancy and maternity discrimination (Ms M Walworth v Scrivens Ltd)

In the case of Ms M Walworth v Scrivens Ltd: 1301685/2017 the Employment Tribunal held that Ms Walworth had been discriminated against by her employer when it failed to ensure parity of treatment for her whilst she was on maternity leave.

The facts in Walworth v Scrivens Ltd

Ms Walworth commenced employment with Scrivens Ltd (“Scrivens”), a chain of opticians, on 26 January 2009. It was later agreed between the parties that she would become a Trainee Dispensing Optician with effect from 13 September 2010, and in connection with this the parties agreed a “Training/Service Agreement” on 16 August 2010 in order for Ms Walworth to be trained as a Dispensing Optician to the standards required by the Association of British Dispensing Opticians.

The Training Agreement contained a term to the effect that, should Ms Walworth leave her employment after 15 December 2014 but before 14 December 2016 she would be due to repay £11,000 in terms of her training costs to Srivens, and if she left after 15 December 2016 but before 14 December 2017 then she would be due to repay £5,500 in terms of her training costs.

At the end of August 2015 Ms Walworth notified Scrivens that she was pregnant, with the estimated due date being April 2016.

On 11 September 2015 Ms Hibberd (HR Manager) wrote to Ms Walwroth acknowledging her pregnancy and stating her Training Agreement would be reviewed to take into account her period of maternity leave.

Ms Walworth subsequently notified Scrivens that she wished to commence maternity leave on 18 April 2016, and on 11 January 2016 Ms Hibberd wrote to Ms Walworth to set out some of the arrangements for her maternity leave – this included a stipulation by Scrivens that, as she was going on maternity leave, the training repayment period under her Training Agreement would be ‘paused’ and the appropriate remaining amount of this period (“the pause clause”).

On 9 February 2016 Ms Walwroth wrote to Scrivens to complain that she believed that she had been subjected to pregnancy and maternity discrimination, although she did not complain about the pause clause in that letter. A grievance process followed and Ms Walworth’s complaints of discrimination were not upheld. Ms Walworth then began maternity leave on 18 April 2016, with her daughter born shortly after this.

On 6 January 2017 Ms Walworth called Ms Hibberd to discuss her return to work. In this telephone conversation it was discussed (among other things) that Ms Walworth was struggling to make childcare arrangements for her daughter and whether Ms Walworth could take a sabbatical.

On 10 February 2017 Ms Hibberd wrote to Ms Walwroth to state that she understood that Ms Walworth was considering her options but she may not return to work from maternity leave. The letter also stated that she would be expected to give twelve weeks’ notice of termination if she did wish to resign and, further, that if she did resign she would have to repay £11,000 under the Training Agreement.

On 13 March 2017 Ms Walworth wrote to Scrivens to inform it that she was submitting her notice of termination of employment, effective immediately. The reason given for her resignation was that she believed that the pause period was discriminatory and that there was no mention of any pause period in the Training Agreement.

Scrivens withheld Ms Walworth’s outstanding holiday pay accrued to the termination date as a set-off against the £11,000 training repayment that it claimed that it was owed.

Ms Walworth subsequently submitted Employment Tribunal claims for pregnancy and maternity discrimination, constructive dismissal, and unlawful deduction from wages.

The decision of the Employment Tribunal in Walworth v Scrivens Ltd

The Employment Tribunal upheld Ms Walworth’s claims for pregnancy and maternity discrimination, constructive dismissal, and unlawful deduction from wages.

Pregnancy and maternity discrimination

The Employment Tribunal held that the implementation of the ‘pause period’ policy constituted unfavourable treatment which Ms Walworth was subjected to because she exercised her right to take period of ordinary or additional maternity leave, as this policy breached regulation 9 of the Maternity & Parental Leave Regulations 1999 (in that it required her (in comparison with someone who did not take maternity leave) to undertake additional service before being free of her obligation to repay her training fee).

Constructive dismissal

The Employment Tribunal held that the implementation of the ‘pause period policy’ constituted a (repudiatory) breach of the implied term of mutual trust and confidence, that Ms Walworth had resigned because of this breach, and that she had not delayed too long in resigning. The Tribunal therefore upheld the claim for constructive dismissal.

Unlawful deduction from wages

The Tribunal held that Ms Walworth had a legal entitlement to be paid holiday pay upon the termination of her employment but that she was not paid such.

The Tribunal ordered that a remedy hearing be held in due course.

Our solicitors’ view on Walworth v Scrivens Ltd

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that employers must ensure that the terms and conditions that are applied to employees on maternity leave do not treat them less favourably than employees who have not taken a period of maternity leave – a failure to ensure equal treatment may result, as with this case, in an Employment Tribunal claim.”

The judgment of the Employment Tribunal can be found here.