Q&As

Is it discriminatory in all cases not to pay a bonus to a female employee who is on maternity leave? For example, what is the position in relation to a bonus awarded on the basis of team (as opposed to individual) performance?

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Published on LexisPSL on 06/01/2020

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Is it discriminatory in all cases not to pay a bonus to a female employee who is on maternity leave? For example, what is the position in relation to a bonus awarded on the basis of team (as opposed to individual) performance?

You may wish to consider:

  1. whether the bonus falls within ‘terms and conditions about remuneration’

  2. the effect of the maternity equality clause, and

  3. the non-contractual payments exception

A woman absent on maternity leave is in a unique position, which requires her to be afforded special protection, but which is not comparable with that of a man actually at work. A woman on maternity leave is not therefore entitled to full pay, despite the principle of equal pay under Article 157 of the Treaty on the Functioning of the European Union.

An employee who takes ordinary or additional maternity leave is entitled to the benefit of all the terms and conditions of employment that would have applied had she not been absent, except ‘terms and conditions about remuneration’.

‘Terms and conditions of employment’ are defined to cover matters ‘connected with’ employment, whether or not they arise under the contract.

When determining whether or not the emp

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