No obligation to provide childcare vouchers under salary sacrifice scheme during maternity leave

The Employment Appeal Tribunal (EAT) have recently made a decision in relation to the provision of childcare vouchers during maternity leave, which addresses a previously grey area of the law in relation to maternity rights.

The fundamental position when it comes to maternity leave is that an employee is entitled to the benefit of all the terms and conditions of her employment that would have applied had she not been absent, except remuneration. There has been a difficult question as to whether childcare vouchers provided through a salary sacrifice scheme amount to a fringe benefit that must continue to be provided or amount to remuneration. We know of anecdotal evidence of some employers ceasing to provide childcare vouchers through salary sacrifice on the basis of guidance from HMRC that they must be provided during maternity leave.

In the recent case of Peninsula Business Services Ltd v Donaldson  the employer offered their employees a childcare voucher scheme by way of salary sacrifice. Peninsula made it a condition of entry to the scheme that in the event the employee went on maternity leave the childcare vouchers would be suspended. The EAT held that it was not discriminatory for an employer to make this a condition of entry. It was noted that many employers do provide vouchers as a benefit in addition to salary rather than by way of salary sacrifice and in this situation the benefit is likely to be required to continue during maternity leave.

However, where the vouchers are provided by way of salary sacrifice, the reality is that the vouchers constitute part of salary that has been diverted before appearing in the employee’s pay packet. Therefore, such vouchers should be regarded as part of “remuneration”, which may be discontinued during maternity leave without being discriminatory.

In delivering its judgement, the EAT expressed there were legislative and other considerations which it had not taken into account when making its decision. It acknowledged that the arguments on both sides of the case were finely balanced and therefore employers may wish to wait and see whether there are any further cases on this issue before they decide whether to change their terms and conditions in relation to childcare vouchers. However, on the face of it, this decision is currently binding on Employment Tribunals.