Email to inaccessible work address during maternity leave could be unfavourable treatment

South West Yorkshire Partnership NHS Foundation Trust v Jackson

Sending an important letter about redundancies to a woman on maternity leave to a work email account which she could not access could be unfavourable treatment under the Equality Act. But whether it was also maternity discrimination depends upon the reasons why that treatment occurred.

Background

While Mrs Pease was on maternity leave in July 2016, the trust began a redundancy process. Despite being on maternity leave, Mrs Pease attended a meeting on 26 July 2016 to discuss the forthcoming redundancies. Alongside others, she was placed on the ‘At Risk Register’. On 28 July an email was sent with an attached redeployment document – to be completed as soon as possible so that HR could start the matching process. Mrs Pease didn’t receive the email because it was sent to her work email address which she was not accessing during her maternity leave. Fairly quickly afterwards however she discovered that she missed something and contacted HR on 4 August. She was then sent a copy of the relevant form to her home email address. She returned it straight away and was not in fact disadvantaged by the short delay. On 16 October Mrs Pease and 18 others were dismissed for redundancy. They brought claims for unfair dismissal and Mrs Pease also brought a claim for discrimination on maternity grounds (s. 18(4) of the Equality Act) for unfavourable treatment for exercising the right to maternity leave.

The tribunal upheld her claim and awarded her £5,000 compensation for injury to feelings. The trust appealed.

EAT decision

The EAT allowed the appeal.

The trust’s appeal as regards the finding of unfavourable treatment was ‘hopeless’ - having an important and urgent work message sent to an email address which one cannot access for some reason must amount to unfavourable treatment in one way or another.

However, where the trust succeeded was on the issue of causation. The tribunal had applied the wrong test. Although the treatment would not have occurred ‘but for’ the maternity leave (according to the tribunal), this was not the correct test to apply. The tribunal should have looked at the ‘reason why’ she had been treated unfavourably. The ‘reason why’ test can be satisfied where a rule is applied which is inherently discriminatory or where the protected characteristic (being on maternity leave in this case) has actually operated on the discriminator’s mind.

As there had been no specific finding on this issue, the case was sent back to the tribunal for it to make any further necessary findings of fact and to then consider the case directing itself properly in relation to causation.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0090_18_2211.html

Comment

The HR takeaway from this decision is that you should agree with pregnant employees, before they start their maternity leave, how you will contact them and keep them up to date with what’s happening in the workplace. If a redundancy situation arises, consult with those on maternity leave and keep them fully in the loop. Failure, for example, to inform them of alternative vacancies or promotion opportunities could well found a claim for unfavourable treatment.