In the case of South West Yorkshire Partnership NHS Foundation Trust v. Jackson and others, the Employment Appeal Tribunal (EAT) determined that the sending of an important email to an employee's work email address that she was not accessing during maternity leave could be unfavourable treatment.
In this short update, we address what the case means for employers.
Whilst on maternity leave, the claimant was placed at risk of redundancy along with a number of other employees. The employer's HR department sent to the claimant's work email address an important email requiring her to complete and return as soon as possible a redeployment document. The claimant was not accessing this email address during her maternity leave. As a result, the claimant did not obtain notice of the email or complete the form for several days.
The EAT upheld the employment tribunal’s initial decision - the sending of the important email to an email address that the claimant was not accessing during maternity leave could be unfavourable treatment.
Whilst the delay did not cause the claimant any substantial harm, it was a legitimate concern, and her claim for unfavourable treatment was, therefore, capable of succeeding. However, the employment tribunal had not considered whether the fact of the claimant's maternity leave was the reason why she had been treated unfavourably. In particular, the tribunal's judgment was not clear about why the sender of the email used only the claimant's work email address or why the claimant did not have access to her work email address during maternity leave.
The sending of an email to an email address that an employee is not accessing during maternity leave can be unfavourable treatment. However, a tribunal also needs to consider the reason why the email was sent in that way. The 'reason why' test can be satisfied if a rule is inherently discriminatory or where the relevant protected characteristic (being on maternity leave in this case) operated on the alleged discriminator's mind when making the decision.
In deciding whether a female employee has been discriminated against because of pregnancy or maternity, the test is whether she has been treated unfavourably (rather than less favourably). There is no need for a comparator to be identified. As such, it can be relatively easy for a pregnancy or maternity discrimination claim to be established.
Some key points to remember:
Agree with pregnant employees, before they start maternity leave, how they wish to be contacted during their absence from the office.
Consult with employees on maternity leave if their roles are placed at risk of redundancy, and ensure that they are able to engage in the consultation process fully.
Inform employees on maternity leave of any promotion opportunities or vacancies that arise during their maternity leave. Failure to do so could also amount to unfavourable treatment, and result in a number of other related claims.