Shahina Murphy v Slough Borough Council and Governing Body of Langley Wood School, EAT,

Surrogate birth leads to discrimination claim: Murphy, a teacher, had been advised not to have any children due to a congenital heart disorder that would put her life at risk if she carried a child to full-term.

Murphy sought paid leave following the birth of her child by a surrogate mother in the US. The school governors treated her request as that of an adoptive parent (prior to the April 2003 introduction of paid adoptive leave), and granted unpaid leave because the school had a budget deficit at the time.

Murphy brought a claim on the basis that she had been discriminated against (by being denied the right to paid maternity leave) on the grounds of her disability.

The tribunal concluded that the reason for her treatment was that she was not the birth mother of her child, not because of her disability. The tribunal was also satisfied that any discrimination and/or failure to make adjustments could be justified as a result of the school’s financial position. Murphy appealed.

The Employment Appeals Tribunal (EAT) accepted that Murphy had been treated less favourably than others who gave birth in the conventional way, and that the reason for this treatment related to her disability.

This element of the appeal was therefore upheld, but it made no difference to the outcome since the EAT accepted the tribunal’s finding of justification on the basis of the school’s financial position.

Unlike payments made under the statutory maternity pay scheme, any payments made would not have been recoverable.

The EAT also agreed with the tribunal’s decision on the issue of justification for any failure to make adjustments.

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