Does a commissioning mother in a surrogacy arrangement fall within the scope of the Pregnant Workers Directive, particularly where she has breastfed the child following birth?

No, according to the opinion of the CJEU in Case C 167/12 CD v ST.

The Claimant, Ms D, and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the Employment Tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child.

Following a preliminary reference by the Employment Judge, Advocate-General Kokott suggested the Court should find that a commissioning mother has the right to receive maternity leave under the Directive, even when she does not breastfeed the child.

However, the Court has held that although maternity leave is intended to protect the special relationship between a woman and her child, the grant of maternity leave pursuant to the Directive presupposes that a worker has actually been pregnant and given birth to a child.

The Court also found that an employer’s refusal to provide maternity leave to a commissioning mother does not constitute discrimination on the grounds of sex contrary to the Equal Treatment Directive.

The Presidential Guidance starts by setting out the general rules for actions by the parties and for actions by an Employment Judge. The Guidance then goes on to provide detailed examples of how the rules should be applied in relation to:

  • disclosure of documents and preparing bundles
  • witness statements
  • making amendments to the claim and response, including adding and removing parties
  • establishing the existence of a ‘disability’ in relevant cases
  • remedy, including Polkey deductions and what a claimant needs to show to prove loss
  • costs
  • timetabling
  • concluding cases without a hearing, and
  • judicial mediation.

The MOJ has published the quarterly employment tribunal statistics for October to December 2013.  Unlike the July-Sept quarter, there is no ‘skewing’ effect from those who rushed to lodge claims before the introduction of fees in July 2013.

There was a 79% drop (compared with the same period in 2012) in the number of applications lodged.    The number of single claims has dropped from a monthly average of between 4,000 – 5,000, down to 1,700 (a drop of about 63%).

If ever there was a need for definitive proof that the introduction of fees is having a devastating impact upon access to justice for inherently vulnerable people then here it is.

The Government should hold their heads in shame.


The Enterprise and Regulatory Reform Act 2013 (Commencement No. 6, Transitional Provisions and Savings) Order 2014 SI 2014/416 has now been published. The Order brings into effect S.66 of the Enterprise and Regulatory Reform Act 2013, which abolishes the statutory discrimination questionnaires contained in the Equality Act 2010. The change takes effect on 6 April 2014 in relation to acts of discrimination occurring on or after that date.

A complainant may still ask questions of the respondent and a court or tribunal can still draw adverse inferences from a refusal to respond or from evasive answers, despite the lack of any provision for a statutory questionnaire.

It is somewhat surprising that this has been implemented given the vast majority of those who participated in the consultation opposed the abolition. Another example of the Government’s agenda against Claimants; the Poor and the vulnerable, we wonder.