EMPLOYMENT LAW

Feature - 1 October 2005

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New maternity rights for health service trainees

The EAT ruled that stopping bursary payments to trainee midwives who were off work due to pregnancy and childbir th amounted to sex discrimination.

Sex discrimination claim

Nurse and midwifery training is currently undertaken in universities or colleges with practical experience being gained through periods of placement in a ward environment in NHS hospitals.

Trainee nurses and midwives coming directly into the profession are no longer given employment contracts by hospitals but receive financial support by means of a bursary administered by the NHS Pensions Agency.

Under the previous arrangements student nurses and midwives were employed by the health authority concerned and were subject to national terms and conditions of employment including maternity pay. This contrasts with the current system where trainees are not in any kind of employment relationship with universities or NHS Trusts.

The relationship with universities is simply that of a student undertaking a university course. NHS Trusts have no direct legal or financial relationship with trainees and generally do not select the students that undertake work placements.

It would appear that no consideration was given by the NHS to the implications of the loss of employment status. For example, the bursary scheme made no reference at all to the policy that should be followed in relation to absence from the course for reasons of pregnancy or childbirth.

When trainee midwives Clare Fletcher and Shelley Wilkinson were absent from their course because of pregnancy their bursaries were stopped. In Clare Fletcher’s case she was required to repay par t the bursary she had already received. Tracey Parkes continued to receive bursar y payments during her absence but only because she agreed to continue with the academic par t of her course during the maternity period and make up the missed hours when she returned.

In an impor tant test case brought to establish the rights of trainees in this situation, the three trainee midwives made claims of sex discrimination.

Tribunal ruling

The employment tribunal found that the trainee midwives were not workers or employees and they were therefore not protected by legislation concerned with pregnancy and maternity. As a result, the claims of sex discrimination against the universities and the NHS trusts failed.

However, the trainee midwives had a further claim under section 14 of the Sex Discrimination Act that outlaws discrimination against women undergoing training for employment.The claim was made against the Student Grants Unit and the secretary of state for health as the providers of the training.

The tribunal examined the bursary scheme.

It noted that if a trainee were absent from the course without permission then payments would be stopped. If a trainee was absent with permission there was discretion whether or not to stop payments. If, on the other hand, the trainee were absent because of sickness, no action would be taken to stop payments unless the absence exceeded 60 days.

In the absence of any reference to absence for pregnancy or childbirth in the bursary scheme the Student Grants Unit automatically stopped bursary payments when attendance at the course was interrupted for any reason other than sickness. It did not apply the discretion built into the scheme to deal with absences taken with permission.

However, the tribunal rejected the claims and decided that there was no discrimination in relation to the administration of the bursary scheme. This was because trainee midwives who were pregnant had been treated in the same way as other trainee midwives, male or female, who had interrupted their courses and they accordingly not been subjected to less favourable treatment.The trainee midwives appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal ruling

The EAT found that the tribunal had confused itself by treating the claim as a claim for ‘maternity pay’ during ‘maternity leave’. The tribunal claim could not be for ‘maternity pay’, because the trainees were not ‘workers’ and were therefore outside the protection of legislation dealing with maternity rights.

Their claim was that they had been discriminated against unlawfully on grounds of sex as pregnant vocational trainees, by having the facility of the bursary payments removed from them during their absences from training.The EAT recognised this and also found that the tribunal was wrong in ruling out a comparison between sickness and pregnancy.

Although an employer could not defend a complaint of sex discrimination by stating that he would have treated a sick man in the same way, this did not to prevent a woman from comparing her treatment with more favourable treatment afforded to a sick man.

There was no necessity for the trainee midwives to compare their treatment with that of sick men in order to succeed in their complaints of sex discrimination, but the EAT has now made it clear that pregnant women can make such a comparison in order to demonstrate that discrimination has occurred. In this case the Student Grants Unit disregarded the first 60 days of any sickness absence – but absence for any other reason, including pregnancy and childbirth, was treated as a withdrawal and resulted in the termination of bursary payments.

Appeal upheld

The EAT was satisfied that that the claims fell within section 14 of the Sex Discrimination Act and also within the scope of the Equal Treatment Directive. It was no defence to argue that the trainee midwives who were absent because of pregnancy were treated in exactly the same way as other trainee midwives who were absent for reasons other than sickness.

European case law relating to discrimination on the grounds of pregnancy makes it clear that the application of the same rule to different situations is discriminatory. In this case the same rule, the termination of the bursary owing to absence, was being applied to different situations.

Another principle is that it is discriminatory to apply a different rule in comparable circumstances. In this case it was discriminatory to treat trainees, when on maternity absence, less favourably than trainee midwives absent for ill-health who would receive their bursary payments for 60 days of absence.The EAT overturned the tribunal decision and held that the trainee midwives were discriminated against. The case has been remitted to the tribunal to determine compensation.

Conclusions

The changes in the arrangements for nurse and midwifer y training were no doubt inspired by the need to improve the quality of training. But it says little for the vision of those responsible for the change that no provision was made for the possibility that trainees might become pregnant. Prior to Project 2000 trainee midwives were entitled to maternity leave and after the changes there was no entitlement at all.

There is an element of paradox in the notion of trainee midwives stripped of all maternity protection while working to care for mothers and babies.When the tribunal case highlighted the issue it did not cause policy makers to pause and reflect on the merits of the policy. On the contrary, the NHS appears to have fought tooth and nail to retain a policy that, quite apart from any question of fairness, would have done little to help recruitment and retention.

Now that the EAT has found in favour of trainee midwives the NHS will be faced with prospect of ensuring that the same facility is extended in similar circumstances to health ser vice trainees in all the different occupational groups.

The full decision of the EAT can be found on www.employmentappeals.gov.uk Jan Ostrowski edits the NHS Employment Law Register, which comments on employment law and reports on leading NHS cases. Contact NHS Partners: Anne Joseph Tel: 01275 395464.

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