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Performance bonus was denied due to parental leave at the time of payment (TAS 108/2020, issued on 26 August 2020)

The performance bonus paid for 2019 to which Employee A would otherwise have been entitled was denied on the grounds that they had been on parental leave in March 2020 at the time the performance bonus was paid. The employee had been told that if they had returned to work before the payment date for the performance bonus, they would have received the performance bonus in full.

According to the employer's statement, performance bonuses were only paid to persons who were normally employed by the employer on the payment date of the performance bonus. Otherwise, the employee was not entitled to a performance bonus. This practice applied to persons on study leave and maternity, family or rotation leave, among others.

On the basis of the reports received, the Ombudsman for Equality noted that the performance bonus in question could be considered as a salary for the previous year's work. In denying the performance bonus to which the employee would have otherwise been entitled on the grounds that they were on parental leave on the date the performance bonus was paid, the employer treated them differently on the basis of parental or family care obligations as provided for under the Equality Act. This gave rise to a presumption of indirect discrimination. 

Under the Equality Act, a presumption of discrimination is rebutted if the employer proves an acceptable reason for their conduct. The employer denied that the procedure was discriminatory on the grounds that all employees on unpaid leave were treated equally. However, the fact that other employees were also denied the performance bonus did not justify the less favourable treatment of Employee A, who was on parental leave, compared to those employees who received the performance bonus. Employee A could have been considered to be treated the same as those in receipt of the bonus in relation to the purpose of paying the bonus. The Ombudsman for Equality considered the discrimination of Employee A to have been in breach of the Equality Act.

The Ombudsman for Equality also drew attention to the fact that losing out on the performance bonus for the period prior to an employee commencing parental leave precisely because of their having done so may affect an employee's willingness to use parental leave. The Court of Justice of the European Union has ruled that if a worker loses her maternity pay under a collective agreement as a result of taking maternity leave directly after unpaid parental leave, this may affect her decision to exercise her right to parental leave (Cases C-512/11 and C-513/11). This, in turn, undermines the effectiveness of Directive 96/34 on parental leave.