Fletcher and Others v Blackpool Fylde & Wyre Hospitals NHS Trust and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE SCOTT BAKER,Lord Justice Pill,LORD JUSTICE HOOPER |
| Judgment Date | 29 March 2006 |
| Neutral Citation | [2006] EWCA Civ 517 |
| Docket Number | A2/2005/1332 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 March 2006 |
[2006] EWCA Civ 517
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Scott Baker
Lord Justice Hooper
A2/2005/1332
MR A LYNCH QC and MR D OUDKERK (instructed by Office of the Solicitor, Department of Health, LONDON, WC2A 2LS) appeared on behalf of the Appellant.
MS T GILL and Ms B CRIDDLE (instructed by Messrs Palmer Wade, LONDON, EC1V 0AA) appeared on behalf of the Respondent.
This is an appeal against a judgment of the Employment Appeal Tribunal ("EAT"), Cox J presiding, delivered on 3 June 2005 following a hearing on 19 January 2005. The EAT allowed an appeal from a decision of an Employment Tribunal held at London Central, sent to the parties on 8 April 2004. The unanimous decision of the Employment Tribunal ("the Tribunal") had been that the present appellants did not discriminate against the present respondents, Mrs C Fletcher and Mrs T Parkes and Miss S Wilkinson, contrary to section 14 of the Sex Discrimination Act 1975. I will refer to the present respondents as the claimants.
The claimants were participants in university courses for qualifications necessary to be practising midwives. Their courses involved both academic studies and clinical training. It is common ground that the courses are properly described as vocational courses and the claimants as vocational trainees. Each of the claimants gave birth to a child during the currency of her vocational course. Each of the claimants had been in receipt of bursary payments during their studies, the bursary system being operated by the first appellants, the Blackpool Wyre and Fylde NHS Hospital Trust. The practice was for bursary payments to cease if a vocational trainee suspended or withdrew his or her involvement in the course of study for any reason, subject to a rule allowing continuing payment in any event of up to 60 days absence in a year for ill-health.
The claims involved a complaint that the claimants ceased to qualify for continuing bursary payment if they suspended their involvement in the vocational training as a result of their pregnancy and maternity ("maternity").
The original claims alleged that the claimants were workers or employees within the meaning of the statute. The Employment Tribunal found against them on that aspect of the case. Alternatively, they claim that there was sex discrimination, contrary to section 14 of the Sex Discrimination Act, in the failure to continue to make bursary payments to them during their maternity. The EAT held that there was sexual discrimination under section 14 and the matter was referred back to the employment tribunal for a remedies hearing conducted on the basis of the conclusion of the EAT.
The appeal is now brought by the Trust and the Secretary of State for Health,. Mr Lynch QC submits, on a point of principle: did the Secretary of State unlawfully discriminate against the claimants by reason of the absence of a scheme providing for payment during maternity? That depends, submit both Mr Lynch and Mr Oudkerk on behalf of the appellants, on whether the "but for" test mentioned several times in the determination of the EAT is the correct test. They also pose the question: does the protection accorded by the law to pregnant workers extent to pregnant vocational trainees?
Late on the first day of what was set down as a three-day hearing, it came to the attention of the court for the first time that the three claims had been settled between the parties. Whatever the outcome of the appeal, we are told, the sums paid to the claimants will not be reclaimed. We are also told that the Secretary of State has introduced a scheme, operative as from 1 June 2005, for maternity arrangements for NHS students and vocational trainees. We were then supplied by Miss Gill, for the claimants, with a document dated 21 September 2005, giving particulars of the scheme. The introductory part of the document provides:
"The Department of Health has decided to implement new interim arrangements for students who need to leave their studies temporarily because of pregnancy and childbirth. This change is to ensure that students are not compelled to abandon their courses because of a lack of financial support during this period. The Government wants to encourage people to work in the NHS and believes family-friendly policies are important in encouraging people, particularly women, to consider a career in the NHS. Students taking leave from training from 1 June 2005 for reasons of pregnancy and childbirth will now continue to receive their existing NHS bursary payments. Full details of the arrangements are outlined in the FAQ section below [that is, the Frequently Asked Questions section] and further background information can also be obtained here. The interim arrangements have been introduced following full consultation and agreement from stakeholders such as UNISON, the Royal College of Nursing, the Royal College of Midwifery and the Equal Opportunities Commission."
The particulars of the scheme are then set out in the FAQ section.
"1. Students will continue to receive their existing NHS bursary payments throughout a period of maternity leave which has been agreed with their respective university. The bursary will normally continue to be paid up to a maximum of 45 weeks but may be extended if there are exceptional circumstances.
"2. Full and part-time students who are in receipt of an NHS bursary who need to take a break from training due to pregnancy and childbirth. This includes nurses, midwives, allied health professionals and medical and dental students who are in receipt of an NHS bursary. EU students in receipt of a fees-only award, and assisted or seconded students will not be eligible.
"3. Existing NHS bursary including older students' allowance, single students' allowance and dependence allowances will continue to be paid to you as normal.
"4. In answer to the question 'what is the earliest date I can begin my period of maternity absence?' Normally, this cannot be earlier than 11 weeks before the expected date that your baby is due …
"7. 'What happens if I am ill while pregnant or there are complications during or after my pregnancy? Can I still receive my NHS bursary if I have to extend my period of agreed absence beyond 45 weeks?' You will need to agree any period of absence exceeding 45 weeks with your university. In exceptional circumstances it may be possible for the bursary payments to be extended beyond 45 weeks. This would be based on individual circumstances and would need to be agreed between your university and the NHS PA Student Grant Unit."
I will not read the remaining detail, save that in relation to backdating:
"Payments for maternity absences commencing before 1 June 2005 cannot be authorised. The interim arrangements outlined above have been agreed with and are supported by key stakeholders including the Royal College of Midwives, the Royal College of Nursing and UNISON."
The organisations mentioned in the document are supporting the claimants in the present litigation. We have also been supplied with a document found on a Government website in relation to the claimant Mrs Fletcher. That refers to the present litigation and also states:
"It is abundantly clear that the Government wants to encourage people to work in the NHS and that family-friendly policies are important in encouraging people, particularly women, to consider a career in the NHS. Whilst the original Employment Tribunal in 2004 rejected these claims and any allegation of discrimination, it did raise questions about the policies underpinning the NHS bursary scheme in relation to authorised absences due to maternity. As a result of the Employment Appeal Tribunal decision the Department of Health are in the process of giving careful consideration to alterations to the underlying policies and have set up a wider review of how authorised absences from NHS-funded courses should be treated in terms of continuing NHS bursary payments. The NHS pension agency with the authority of the Department of Health will shortly be implementing interim arrangements to improve the way absences due to maternity are dealt with under the NHS bursary scheme. The interim arrangements will need to be reviewed when there has been a proper opportunity to assess them in practice."
In relation to that last sentence, I comment that there is no reference in this document to the arrangements being dependent on the outcome of the present litigation. The document is undated but it appears to pre-date, and probably...
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