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Unfavourable Treatment while on Maternity Leave

The Employment Appeal Tribunal in the case of South West Yorkshire Partnership NHS Foundation Trust v Jackson has considered whether it was unfavourable treatment to send an email to an inaccessible email address to an employee on maternity leave.

Background

The Claimant was on maternity leave when South West Yorkshire Partnership NHS Foundation Trust (“the Trust”) commenced a redundancy process and she was put “at risk”. An email was sent to the Claimant’s work email address which asked her to complete a redeployment document as soon as possible. As she was on maternity leave, the Claimant did not have access to her work email. Nevertheless, she found out about the email a few days later and completed the form. She was not disadvantaged by the delay.

The Claimant was dismissed for redundancy and she brought claims for unfair dismissal and maternity discrimination.

The Law

Pregnancy and maternity are a Protected Characteristic under the Equality Act 2010.

Under section 18(4) of the Equality Act 2010, pregnancy and maternity discrimination occurs where an employer treats a woman unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, her right to ordinary or additional maternity leave.

When considering whether the discrimination was because of a Protected Characteristic, if the reason for the treatment is not immediately apparent, the tribunal should inquire into the alleged discriminator’s mental processes. These are referred to as “reason why” cases.

Decision

The Employment Tribunal held that the sending of the email to an inaccessible account was unfavourable treatment and amounted to maternity discrimination. She was awarded £5,000 compensation for injury to feelings.

The Trust appealed.

The Employment Appeal Tribunal allowed the Trust’s appeal. It held that although the unfavourable treatment would not have occurred but for the maternity leave, the Employment Tribunal had applied the incorrect test. It should have considered the “reason why” the email was sent to the Claimant’s work email address.

The case was remitted for further findings on this point.

Comment

Before an employee goes on maternity leave, employers should always try to agree how they will stay in contact.  Employees on maternity should be kept up to date with what is happening in the workplace, especially any significant changes such as redundancy exercises or promotion opportunities

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