In the recent case of Peninsula Business Services (“PBS”) v Donaldson it was held by the EAT that it was not discriminatory to discontinue childcare vouchers during maternity leave.

Women on maternity leave are entitled to non-pay benefits pursuant to the Maternity and Parental Leave Regulations 1999 (“the Regulations”). An employment tribunal held that following HMRC guidance that contractual non-cash benefits provided under a salary sacrifice scheme must continue to be provided during ordinary maternity leave, that it must be discriminatory for an employee to lose childcare vouchers during maternity.

The EAT allowed an appeal from (PBS) and held that no legislative basis had been found to support the HMRC guidance. The key question was: did the vouchers constitute remuneration? If they did, Regulation 9 of the Regulations did not require this to continue during maternity leave. Langstaff J held that the vouchers did represent part of salary since pay had been substituted with vouchers under a salary sacrifice scheme. On this basis they were to be regarded as remuneration and could be discontinued during maternity leave.