The Equality Act 2010 states that it is discrimination to treat a woman unfavourably because she is on maternity leave. In SW Yorkshire Partnership NHS Foundation Trust v Jackson and ors, the Employment Appeal Tribunal (EAT) held that sending an urgent email to a woman on maternity leave to a work email address that she could not access constituted unfavourable treatment.
Ms Pease, who worked in the Trust’s Health and Wellbeing Services, was told that she was at risk of being made redundant (along with 18 other members of staff) whilst she was on maternity leave.
Two days after she attended a meeting about the forthcoming redundancies, an email was sent to her work address on 28 July 2016 asking her to complete a redeployment document. However, as she was not accessing her work address, she did not receive it. On 4 August, when she rang her workplace, she was told about the form which was then sent to her. She completed and returned it straight away.
Along with two other members of staff on maternity leave, she alleged discrimination on maternity grounds under section 18(4) of the Equality Act 2010. Her basic argument was that both she and her two colleagues had been treated unfavourably because of “a failure adequately to communicate with them with regard to the redundancy exercise …”.
Section 18(4) of the Equality Act states that “A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.”
The tribunal agreed with her that the delay in contacting her to give her the opportunity to return her preference form was a detriment. Although she had been on the At Risk Register the whole time, she was still put at a disadvantage because she had not been able to submit her preferences during the period from 28 July to 4 August 2016.
This failure to communicate with her was a consequence of her being on maternity leave and not having access to that information led to a legitimate concern that she was being kept out of the loop. It therefore constituted unfavourable treatment because it arose as a consequence of her exercising her right to maternity leave. The tribunal awarded her £5,000 in compensation.
Allowing the appeal in part, the EAT first held that the Trust’s argument that there had not been any unfavourable treatment was “hopeless”. It was clear that having an important and urgent work message sent to an email address which Ms Pease could not access must amount to unfavourable treatment “one way or another”.
However, the EAT held that the tribunal was wrong to conclude that the unfair treatment arose “because” she exercised her right to maternity leave and that this therefore amounted to discrimination under section 18(4). Although the unfavourable treatment would not have happened “but for” the fact that Ms Pease was on maternity leave, the tribunal had not considered whether this was the “reason why” she had been treated unfavourably. As such it was not clear why the sender of the email used only her work email address or why she did not have access to her work emails.
It therefore remitted the case to the same tribunal to decide whether it would be appropriate to hear further evidence and/or whether it should or could make further findings of fact before considering the case properly in relation to causation.