Unfavourable treatment for restricting access to important email for employee on maternity leave

In SW Yorkshire Partnership NHS Foundation Trust v Jackson (UKEAT/0090/18/BA), the Employment Appeal Tribunal (EAT) held that it can be unfavourable treatment under the Equality Act 2010 to send a woman an important email while on maternity leave to an email address that she is unable to access. However, a tribunal needs to consider the reason why the email was sent in that way in making its judgement.

This claim was part of 19 claims in total brought against the Trust. The Claimant was working within the Trust’s Health and Wellbeing Service and was dismissed for redundancy following the decommissioning of the Service on 16 October 2016. She claimed unfair dismissal and, as she was on maternity leave at the time of the redundancy exercise, also made a claim for discrimination on the grounds of pregnancy and maternity under section 18(4) of the Equality Act 2010.

There was a meeting regarding the possible redundancies on 26 July 2016, which the Claimant attended despite being on maternity leave. The Claimant was put on the “at risk” register and on 28 July an email was sent to all those on the register with details of redeployment opportunities and containing redeployment documentation to complete. As this was sent to the Claimant’s work email address which she did not have access to, she did not get notice of the email or complete the form for several days, until she called to request details on 4 August 2016 and was sent a copy to her home email address.

Although this did not cause any substantial harm or disadvantage it caused her legitimate concern. It was found that “the delay … was a detriment and unfavourable treatment because it arose as a consequence of her exercising her right to maternity leave”. The Employment Tribunal (ET) was satisfied that the connection was established and that the unfavourable treatment was “because” she was exercising her rights to maternity leave and thus amounted to discrimination on the basis of pregnancy and maternity. The Trust appealed.

The appeal was allowed as the EAT held that the ET did not consider causation properly. Although the unfavourable treatment would not have happened were it not for the fact that the claimant was on maternity leave, the ET had not considered whether this was the “reason why” she had been treated unfavourably.

The EAT set out that the ET must ask itself the standard “reason why” question in relation to why the unfavourable treatment took place and that it is not sufficient to simply state that “but for” the fact of her maternity the discrimination would not have been experienced.

The EAT held that the tribunal had erred in applying this test. Although the unfavourable treatment would not have happened “but for” taking maternity leave, the tribunal should have considered the reason why the email was sent to the Claimant's work email. There was no finding on this point and the case was remitted back to the tribunal for further consideration.

Based on these findings, it would seem that the simple act of sending the correspondence to the Claimant whilst on maternity leave to an email address she could not access, while amounting to unfavourable treatment, could not amount to discrimination on the grounds of pregnancy and maternity.

However, the possibility of unfavourable treatment should be borne in mind in the context of a member of staff on maternity leave to avoid any possible claims for discrimination.