Alerts

The Pause Clause

Ms Walworth entered into a new Training/Service agreement when she started training for a new role with her employer which contained an obligation that training costs would have to be repaid if she left employment prior to the completion of her training. Ms Walworth became pregnant and her employer implemented a ‘pause clause’ in her Training/Service agreement for the entirety of her maternity leave.

By pausing the period during which training fees had to be repaid whilst Ms Walworth was on maternity leave, did her employer treat her unfavourably because of her maternity leave?

Ms Walworth v Scrivens Limited

Ms Walworth worked as an optical advisor for Scrivens Limited (“Scrivens”) until 2010 when it was agreed that she would become a Trainee Dispensing Optician and a Training/Service Agreement was agreed. Under the terms of the agreement, if Ms Walworth left her employment with Scrivens prior to 2 years from commencement of her training she would owe £11,000 of costs and £5,500 of costs if she left prior to 3 years. During this period Ms Walworth notified Scrivens that she was pregnant and would like to commence her maternity leave 2 weeks before her due date. The HR Manager acknowledged the pregnancy and stated that the Training/Service Agreement would need to be reviewed closer to the date of Ms Walworth’s maternity leave. It was decided that the Training/Service Agreement would be paused while Ms Walworth was on maternity leave and therefore so would the obligation to repay all or part of her costs. The duration of Ms Walworth’s maternity leave would not count towards this obligation period but rather would recommence upon her return to work.

Shortly before she was due to return to work, Ms Walworth called Scrivens to ask for advice on her return to work as her daughter had health issues that would be potentially serious and she did not want to commit to childcare whilst these were ongoing. Ms Walworth proposed taking a further 2 months off work or a sabbatical. The HR Manager advised Ms Walworth that this was not something the company generally supports and Ms Walworth could only use up to 2 weeks of her holidays at once, she could not offer any suitable options of support for Ms Walworth. The HR Manager set out that Ms Walworth needed to make them aware of her intentions as soon as possible but that if she was not intending to return on the advised date that she would have to give 12 weeks’ notice. She also confirmed that she would have to repay £11,000 under the training agreement.

Ms Walworth resigned. She also reviewed the training agreement and found no mention of any clause allowing a pause during the period she was on maternity leave. Scrivers accepted Ms Walworth’s resignation and withheld her holiday pay for the final year of employment as set-off against the training cost figure.

Ms Walworth brought claims for breach of contract and pregnancy/maternity discrimination.

Decision

The Employment Tribunal held that there was a breach of contract. Although Scrivens argued that a letter sent to Ms Walworth setting out the suspension of the period of repayment of costs during Ms Walworth’s maternity leave was intended as a variation of the agreement, it concluded that this was not accepted. It set out that Scrivens could not rely upon Ms Walworth’s conduct and/or silence as acceptance of the variation which would take place a considerable amount of time in the future. The operation of the ‘pause clause’ therefore amounted to a breach of contract.

It also accepted the claim of pregnancy/maternity discrimination. The ‘pause clause’ required Ms Walworth to undertake additional service before being free of the obligation to repay her training fee compared with someone who did not take maternity leave. The imposition and use of the ‘pause clause’ is unfavourable treatment due to maternity leave and is unlawful discrimination on the basis of pregnancy or maternity. 

Comment

Employers always need to be mindful of the effects of certain clauses on different employees, such as women who exercise their right to take maternity leave. A woman who takes ordinary or additional maternity leave is entitled to the benefit of all of the terms and conditions of employment which would have applied if she had not been absent. In this case the original clause only stipulated that Ms Walworth had to be ‘employed’ in relation to the repayment of training cost. Ms Walworth’s terms and conditions had therefore been changed due to her maternity leave and this meant that she had been treated less favourably than someone who was not on maternity leave.

To manage the situation when an employee advises you that she is pregnant the employer and employee should plan ahead. Regular communication should be maintained during maternity leave, consideration should be given to keeping in touch days and the return to work should be addressed at an appropriate stage.

 

If you have any queries in relation to this alert or any other employment related queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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