During the coronavirus pandemic, as a response to the need for a number of its staff to remain at home either because they were shielding or for childcare reasons (and in cases where such staff were unable to perform their work from home), the Respondent introduced a paid special leave policy, whereby such employees would continue to be paid notwithstanding their inability to work. As pre-conditions for entitlement to paid special leave under the policy, however, the employees in question first had to use up any accrued time off in lieu (“TOIL”) and annual leave. In two separate group claims before the ET, it was complained that this (1) amounted to unfavourable treatment for the purposes of section 15 Equality Act 2010, and (2) gave rise to a particular disadvantage for women under section 19 EqA. The ET went on to uphold the section 15 claims but found that the Claimants had not established any loss or basis for an award of injury to feelings. As for the section 19 claims, the ET did not find that the Claimants had established the necessary group disadvantage for women so dismissed the complaints of indirect sex discrimination. Both the Claimants and the Respondent appealed.

The EAT first allowed the Respondent's appeal, concluding that the ET had fallen into error in allowing the Claimants’ complaint to define its assessment of “treatment” and thus to artificially separate out the conditions of entitlement to a benefit from the benefit itself. Also, although academic in the circumstances, the ET had permissibly concluded that no evidence had been adduced to demonstrate any injury to feelings. The EAT dismissed the Claimants' cross appeal which failed on the basis that the ET had reached a permissible decision on the evidence before it. In any event, the same analysis applied to the ET’s finding on “disadvantage” (for section 19 purposes) as to its finding of “treatment” (under section 15) and, in the alternative, its dismissal of the Claimants’ claims would be upheld on this basis.