Sending an email to an employee on maternity leave to inaccessible account could be ‘unfavourable treatment‘
In the case of SW Yorkshire Partnership NHS Foundation Trust v Jackson it was recently decided that sending an important email to an employee on maternity leave to an account she did not have access to, could amount to “unfavourable treatment”. However, to decide whether or not that treatment is discriminatory a Tribunal needs to enquire about the reason why the email was sent that way.
Under section 18 of the Equality Act 2010, pregnancy and maternity discrimination occurs where an employer treats a woman unfavourably during the “protected period”:
• Because of her pregnancy or because of an illness suffered by her as a result of her pregnancy.
• Because she is on compulsory maternity leave.
• Because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
The protected period is the period which starts when a woman’s pregnancy begins and ends at the end of her additional maternity leave period or (if earlier) when she returns to work.
“Unfavourable treatment” can range from a failure to consult during a redundancy exercise to a dismissal.
The case concerned an appeal by one of the employees in a joint action brought against SW Yorkshire Partnership NHS Foundation Trust (the Trust).
The employee, Emma Pease, worked in the Trust’s Health and Wellbeing Service. She was on maternity leave when the Trust carried out a redundancy exercise following the decision to decommission the Service.
On 26 July 2016, a meeting took place to discuss future redundancies. Mrs Pease attended, although she was on maternity leave at the time. She was put “at risk” of redundancy the next day. On 28 July 2016, an important email was sent by the Trust to Mrs Pease and others, attaching a redeployment document and guidance notes. The email stressed that the document had to be filled in and returned to HR as soon as possible so HR could start matching employees to available roles. Mrs Pease did not receive the email because it was sent to her work email address which she wasn’t accessing because she was on maternity leave.
Mrs Pease found out shortly afterwards that she had missed an important email, managed to get a copy of the form and returned it straight away. She was not disadvantaged by the short delay.
Mrs Pease’s employment was eventually terminated by reason of redundancy. She subsequently brought a claim for unfair dismissal and a claim for maternity discrimination.
Her claim for maternity discrimination was that the Trust had sent her an important email to an email account she was not accessing and that this amounted to unfavourable treatment because the reason she didn’t get the email was because she was on maternity leave. She said that she was unfavourably treated because the delay in contacting her meant that she missed being considered for redeployment opportunities for a period of nine days.
The Tribunal agreed with the Claimant that she had been disadvantaged in this way and that her inability to access her work email also meant she did not know about three job opportunities. The Tribunal was satisfied that the missed opportunity to provide her details to HR and the ignorance of three potential job matches was a direct consequence of Mrs Pease’s maternity leave. The Tribunal therefore concluded that the Trust had discriminated against Mrs Pease because she was on maternity leave. Mrs Pease was awarded £5,000 in compensation for this claim.
The Trust appealed to the Employment Appeal Tribunal on three grounds.
The first ground of appeal was declared “hopeless”. This was that the Tribunal should not have found “unfavourable treatment”. The Employment Appeal Judge said that having an important and urgent work message sent to an email address which you cannot access must amount to unfavourable treatment one way or another. The third ground of appeal was similarly declared “hopeless”. However, the second ground of appeal gained traction. This was that the Tribunal had not approached the question of “causation” properly and therefore could not justify their finding that the unfavourable treatment was discriminatory.
What the Employment Appeal Tribunal (EAT) Judge said in response was this:
The Tribunal appeared to have come to the conclusion that the unfavourable treatment was discriminatory by applying a “but for” test – in other words, “but for” being on maternity leave, Mrs Pease would not have been disadvantaged. This, the EAT Judge held, was not the right test and was insufficient to make a finding of discrimination. The Tribunal should have gone into the “reason why” the disadvantage occurred. The Tribunal should have enquired as to whether the person who sent the email in the first place had any discriminatory motive in mind – but there was no finding to this effect in the Tribunal’s judgment. The Tribunal also had not made any findings as to whether an inherently discriminatory rule had been applied.
In fact, the EAT Judge said that the evidence given at the Tribunal hearing suggested that the mistake with the email was down to an administrative error and nothing more.
The EAT Judge therefore concluded that he could not uphold the finding of discriminatory treatment and sent the case back to the Tribunal to consider “the reason why” the email was sent to Mrs Pease’s work email.
Points to note
It is good to be reminded how using a “but for” test can lead you down the wrong path in discrimination cases. It’s all well and good saying that “but for” being on maternity leave, the claimant would not have missed the email – but it doesn’t follow that the treatment was discriminatory. As the EAT noted, it looked like the mistake was down to human error. A result for common sense if not for the Trust whose admin error appears to have cost them dearly.
Action to take
1. Make sure you discuss with employees before they go on maternity leave how they prefer to be contacted during their leave.
2. Allow the employee to continue to access their work email account while on leave if they want to – don’t block access!
3. Keep employees on maternity leave updated and informed about any vacancies that arise during their leave.
4. Make sure you inform employees on maternity leave about any social events and other work events.
5. Tread very carefully in a redundancy situation which may affect an employee on maternity leave. A failure to consult can amount to maternity discrimination and remember that employees on maternity leave have priority over other employees to any suitable available jobs.