A dispensing optician won her case against her employer for pregnancy and maternity discrimination, constructive dismissal, and unlawful deduction from wages because they tried to deduct training fees of £11,000 from her when she resigned.
In the case of Ms M Walworth v Scrivens Ltd, the Employment Tribunal found that the employer had tried to put in a contractual ‘pause clause’ to reclaim training costs whilst she was on maternity leave.
Ms Walworth joined Scrivens Ltd in 2009 and signed a training agreement in 2010, which outlined that she would be liable to repay her study fees of £11,000 should she leave the Company within three years of completing and registering as a dispensing optician with the General Optical Council. Ms Walworth completed her studies and in August 2015 she informed her employer of her pregnancy.
In January 2016, before Ms Walworth’s maternity leave began, Scriven’s HR Department advised her that she had only completed 16 months of her three-year study repayment period and that the countdown of this period will be paused whilst on maternity leave and restart upon her return.
Before to returning from maternity leave, Ms Walworth contacted Scrivens to discuss her return to work. However, she told them of concerns she had regarding putting her daughter into childcare, because the child had been unwell. Ms Walworth inquired about the possibility of extended time off work, including using holiday time or the possibility of a sabbatical, but Scrivens advised that such an extension would not be granted. Ms Walsworth was then contacted by HR to confirm her planned return in April 2017 and reminded that should she resign, then she would need to repay her study fees.
They clearly had not mentioned the option of unpaid parental leave to which all parents of children under the age of 18 have the right.
Ms Walworth submitted her resignation letter in March 2017, stating that her contract of employment had been “fundamentally broken” as she had been mistreated due to her pregnancy and decision to take maternity leave. Scrivens then sent her a formal payment demand letter to collect the outstanding study fees and went on to withhold Ms Walworth’s holiday pay to cover some of the costs.
During the ruling, the former employee stated that she had taken the HR Manager’s word regarding the ‘pause clause’ and trusted that there was, in fact, such a clause in her training agreement. However, when checking the paperwork herself, she discovered that it was not the case.
The tribunal confirmed that Ms Walworth’s contract did not have a ‘pause clause’ allowing to pause employment for maternity or other long-term absence for the purposes of calculating whether the repayment was due. It also confirmed that this was a case of “unfavourable treatment [because of] maternity leave, and thus unlawful discrimination on the basis of pregnancy or maternity.”
It is important to remember that employees on maternity leave are still employees – even whilst they are away - and that they continue to accrue employment rights entitlements including continuity of service and annual leave. They are entitled to all their contractual terms and conditions, except for remuneration which is replaced with maternity pay or a period of unpaid maternity leave. Putting in clauses which are detrimental to women on maternity leave will be judged to be discriminatory. And don’t forget the right to request flexible working.
Posted on 25 Jun 2018