Veitch Penny LLP - Exeter | Crediton, Devon

Case

Shahina Murphy v Slough Borough Council & the Governing Body of Langley Wood School
Employment Appeal Tribunal - (14 September 2004)

Issues

(1) Maternity leave
(2) Disability discrimination
(3) Education

Facts

Ms Murphy was employed by the Local Authority to work at a community school. The school had a delegated budget. She suffered from a congenital heart disorder the effect of which meant that carrying a pregnancy to full term could endanger her life.

Ms Murphy had had a child by a surrogate mother in the USA. She had applied for post-natal paid leave from the School Governors. This application was prior to the introduction of paid adoptive leave and the request was refused because the budget of the school was in deficit. During the three years prior to the academic year starting September 2001 the school had been subject to special measures arising from an OFSTED inspection. The Head Teacher had sought additional funding from the Council’s Contingency Fund but this was refused. Instead the Applicant was granted unpaid leave and at her request had been treated as one made an adoptive parent.

A complaint was made to the Employment Tribunal complaining of disability discrimination.

At first instance the Tribunal found that the correct Respondent had been the school’s governing body. The majority of the Tribunal found that Ms Murphy had not been treated less favourably within the meaning of the Disability Discrimination Act 1995. The school was not required to make adjustments for Ms Murphy in the form of providing a paid leave of absence. A further unanimous verdict found that the defence of justification would have been successful because of the school’s financial position.

Ms Murphy appealed.

Decision

The appeal was dismissed.

The Employment Appeal Tribunal (EAT) confirmed that in view of the regulations pertinent to employment in education the governing body was to be regarded as the employer for disability discriminating proceedings. It was confirmed that the complaint could only have been made against the governing body and not against the local Education Authority.

In addition it was held that Ms Murphy had been treated less favourably in being refused paid leave in relation to others who gave birth to their own children. The reason for the treatment was her inability to have children which related to her disability. However the EAT confirmed that the Tribunal was correct to find that the governing body could justify its decision not to give paid leave to the Applicant because of the school’s financial position.

Comments

This case provides useful guidance when dealing with surrogacy issues.

Rachel Bickle – Trainee Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it