15 February 2012 #Employment
The Newcastle employment tribunal is to make a reference to the ECJ concerning whether, under EU law, a woman who becomes a mother by way of a surrogacy arrangement should be entitled to paid maternity leave to bond with her baby, establish breastfeeding and maintain and develop her family life.
The Claimant, known as C_D to protect her identity, became a mother through surrogacy and she breastfed her baby. She sought time off and was offered various types of leave including holiday, a career break, unpaid leave and reduced hours. She sued complaining that she had been discriminated against because of sex and pregnancy/maternity and subject a detriment under the Equality Act. She has also claimed associative pregnancy discrimination because of the pregnancy of the surrogate.
The tribunal’s reference to the ECJ could result in women who have a child through a surrogate mother being entitled to the same employment protection under EU law as conventional mothers. Although this is not a matter of wide application (according to the judgment, there are approximately 40 to 70 surrogate births in the UK each year) it was seen to be less expensive to make a reference at this stage, rather than deal with the issue by successive appeals, with a reference at a later stage.
The tribunal identified the key question in the case as whether or not a mother who has a child by a surrogate mother is entitled to the benefits of the rights given to pregnant women. It will take some time for the key legal issue in this case to be fully resolved. Even if the ECJ rules that mothers in the claimant`s position are entitled to protection under EU law, the UK legislation will not be compliant. Claimants would then need to rely on courts and tribunals interpreting UK legislation purposively until the Government amended it to reflect the ECJ decision.
Until the ECJ provides an answer, employers may wish to consider treating an employee in the claimant`s position in the same way as an adoptive parent. The Respondent in this case refused to do that on the basis that she did not comply with the adoption policy as she could not provide a matching certificate.