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I am seeking your advice as an expecting pregnant contingent agency worker transitioning to permanent employee status.
My agency contract agreement is termed Permanent and Temporary Candidate Agreement, and it does not mention anything about continuous service.
I have worked continuously for a total length of service of 15 months for the end hirer, and have recently been offered a permanent position, however talks of transition to a permanent position has been in the pipelines for the past 9 months. The total time working in the role consistently performing similar duties demonstrates continuity of service.
The end hirer chooses not to recognise or count my agency work towards qualifying for enhanced maternity benefits, since they do not count agency work as continuous service in the same way, therefore an agency worker does not meet the eligibility criteria for these benefits and my continuous service is not recognised therefore I am not eligible for enhanced maternity pay.
There is no flexibility and/or discretion or individual application. I have been refused a reasonable adjustment. The end hirer can argue the scope of Reasonable Adjustments for Non-Employees lies with the agency.
I’ve not been given an individual assessment, or a health and safety risk assessment.
I argue my ability to meet qualifying period is solely due to pregnancy, not solely due to length of service and that the common denominator and the sole underlying reason for ineligibility to qualify for EMP is specifically due to the timing of my pregnancy, it is not due to my status as an agency worker or a permanent employee.
It’s provided that the current maternity pay policy doesn’t apply to me because I am not an employee, however as a permanent employee, this policy will apply to me. I have provided that even if the policy is not applicable to me, and intended for permanent employees only, the equality act applies to everyone.
The current application for the qualifying period places me at a disproportionate disadvantage due to pregnancy time sensitivity as I cannot delay maternity leave. The current practice fails to protect against discrimination for pregnant workers in the workplace.
Mandatory leave issue: my agreement states that I am not expected to follow any internal rules that relate solely to employees, however I was directed by the company to take 10 days consecutive mandatory leave as it applies to all employees, and no exceptions were provided. This leave reduced my income, and the company had no right. I believe I have been treated unfairly, been given unfavourable terms and have not been protected by discrimination as a protected characteristic under the Equality Act 2010.
My argument is not that I am entitled to enhanced maternity pay as an agency worker, my challenge is the current practices under the Equality Act 2010 fails to protect pregnant workers from discrimination, and it treats pregnant workers unfairly. The legitimate business purpose for such practices does not negate the disproportionate disadvantages. The company refuses to provide a reasonable adjustment to mitigate the disadvantages I face.
Does my case have any legal merit?
Do I have a case for discrimination under the equality act 2010?
Thank you for your attention to this matter.
My agency contract agreement is termed Permanent and Temporary Candidate Agreement, and it does not mention anything about continuous service.
I have worked continuously for a total length of service of 15 months for the end hirer, and have recently been offered a permanent position, however talks of transition to a permanent position has been in the pipelines for the past 9 months. The total time working in the role consistently performing similar duties demonstrates continuity of service.
The end hirer chooses not to recognise or count my agency work towards qualifying for enhanced maternity benefits, since they do not count agency work as continuous service in the same way, therefore an agency worker does not meet the eligibility criteria for these benefits and my continuous service is not recognised therefore I am not eligible for enhanced maternity pay.
There is no flexibility and/or discretion or individual application. I have been refused a reasonable adjustment. The end hirer can argue the scope of Reasonable Adjustments for Non-Employees lies with the agency.
I’ve not been given an individual assessment, or a health and safety risk assessment.
I argue my ability to meet qualifying period is solely due to pregnancy, not solely due to length of service and that the common denominator and the sole underlying reason for ineligibility to qualify for EMP is specifically due to the timing of my pregnancy, it is not due to my status as an agency worker or a permanent employee.
- If I were not currently pregnant, as a transitioned permanent employee, I would be able to meet the qualifying period, accrue continuous length of service, making me eligible for EMP. However, because I am currently pregnant, I’m unable to meet the required criteria.
- It’s provided that so long as the qualifying period applies equally to all employees, all newly pregnant employees (agency or not) would also be at an unfair disadvantage in meeting eligibility, however this reason is solely due to unmet required service requirements at the company, is solely due to zero length of service, and not because of whether they are pregnant or not. The company argues in meeting eligibility, this is solely because they have not met the required length of service at the company, regardless of whether they are pregnant or not.
- I have met the required length of service, it is just not recognised by the end hirer, alike to choosing not to recognise I am pregnant.
It’s provided that the current maternity pay policy doesn’t apply to me because I am not an employee, however as a permanent employee, this policy will apply to me. I have provided that even if the policy is not applicable to me, and intended for permanent employees only, the equality act applies to everyone.
The current application for the qualifying period places me at a disproportionate disadvantage due to pregnancy time sensitivity as I cannot delay maternity leave. The current practice fails to protect against discrimination for pregnant workers in the workplace.
Mandatory leave issue: my agreement states that I am not expected to follow any internal rules that relate solely to employees, however I was directed by the company to take 10 days consecutive mandatory leave as it applies to all employees, and no exceptions were provided. This leave reduced my income, and the company had no right. I believe I have been treated unfairly, been given unfavourable terms and have not been protected by discrimination as a protected characteristic under the Equality Act 2010.
My argument is not that I am entitled to enhanced maternity pay as an agency worker, my challenge is the current practices under the Equality Act 2010 fails to protect pregnant workers from discrimination, and it treats pregnant workers unfairly. The legitimate business purpose for such practices does not negate the disproportionate disadvantages. The company refuses to provide a reasonable adjustment to mitigate the disadvantages I face.
Does my case have any legal merit?
Do I have a case for discrimination under the equality act 2010?
Thank you for your attention to this matter.
