Hefty fine for employer due to adding a “pause clause” into an employment contract

In the case of Ms M Walworth v Scrivens Ltd, the Employment Tribunal ("ET") has ruled that the former employee has been discriminated against and unfairly dismissed by her employer due to a contractual ‘pause clause’ to reclaim training costs whilst she was on maternity leave.

Background

Ms Walworth commenced her employment with 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 in December 2014 and shortly afterwards, in April 2014, she informed Scrivens of her pregnancy.

In January 2016, before Ms Walworth 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.

Prior to returning from maternity leave, Ms Walworth contacted Scrivens to discuss her return to work. However, she expressed concerns regarding putting her daughter into childcare, as 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 will need to repay her study fees.

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 ET 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,” the judgment read.

Aspire Comment

The law protects employees against unfavourable treatment and unfair dismissal because of childbirth or because of maternity leave.

Employees have certain rights whilst on maternity leave, these include:

• the right to 52 weeks maternity leave with the right to return to work.
• entitlement to all contractual terms and conditions during maternity leave, apart from remuneration.
• the right to be offered a suitable alternative vacancy if the employee is made redundant during maternity leave.
• the right to request flexible working.

Employers need to consider any effects their policies and contractual clauses may have on women who decide to take maternity leave. Such consideration will help to avoid any potential Employment Tribunal claims, promote equal opportunities and ensure compliance with the Equality Act 2010.

If you require assistance with issues relating to maternity, adoption, paternity or shared parental leave, contact Aspire at enquire@aspirepartnership.co.uk