18 March, 2019
The Employment Appeal Tribunal ("EAT") held in SW Yorkshire Partnership NHS Foundation Trust v Jackson that it can be unfavourable treatment under the Equality Act 2010 to send a woman on maternity leave an important email at an email address that she can't access. However, it will be necessary for a tribunal to consider the reason why the email was sent in that way.
One of the Claimants, Ms Pease, was on maternity leave while a redundancy exercise was being carried out. As part of the redundancy process, an important e-mail was sent to her e-mail address despite the fact that she was not accessing her account during her leave. The email contained details of redeployment opportunities, and required her to fill in a redeployment document and return it to HR as soon as possible. As a result, she did not get notice of the e-mail or fill in the form for several days. Although this did not ultimately cause any substantial harm, it caused her legitimate concern and the EAT upheld the Employment Tribunal's ("ET") finding that it amounted to "unfavourable treatment".
The ET also found that the unfavourable treatment was due to the fact she was exercising her rights to maternity leave and it therefore amounted to discrimination pursuant to s.18(4) of the Equality Act 2010. The EAT allowed the appeal in relation to this issue as the ET did not consider causation properly. Although the unfavourable treatment would not have happened "but 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 fact that she was on maternity leave had not operated on the Respondent's mind, and there was no sufficient factual basis or analysis to support a finding that the Respondent had applied an inherently discriminatory criterion. In particular, the ET's Judgment was not clear as to why the sender of the e-mail used only her work email address or why the Claimant did not have access to her work emails.
This case demonstrates the need for employers to keep modes of communication in mind when contacting employees on maternity leave. The circumstances in this particular case should be dealt with with particular sensitivity in any event to ensure that the potential for claims are avoided. If there is any doubt, seek legal advice.