EAT overturns finding of discrimination against NHS Trust26/03/19
In SW Yorkshire Partnership NHS Foundation Trust v Jackson and others, the Trust, represented by Capsticks, overturned a decision of the Employment Tribunal that the Trust’s treatment of a woman on maternity leave amounted to pregnancy and maternity discrimination under the Equality Act 2010 (the Act).
Whilst on maternity leave, the Claimant was put at risk of redundancy along with others. She was sent an important document relating to redeployment opportunities which she was required to return to HR as soon as possible. However, the form was sent to her work email address which she was not accessing, and therefore her response was delayed by several days. Whilst this did not in fact disadvantage her, it did cause her “legitimate concern” and she brought a claim against the Trust for discrimination on maternity grounds contrary to section 18(4) of the Act. The Claimant alleged that she was treated unfavourably due to a failure to communicate adequately with her with regard to the redundancy exercise.
The Employment Tribunal (ET) upheld her claim, finding that she was treated unfavourably as she did not receive the email “because” she was on maternity leave. The Trust appealed to the Employment Appeal Tribunal (EAT).
The EAT overturned the decision of the ET. It found that sending a woman on maternity leave an important email to an email address that she could not access could amount to unfavourable treatment contrary to the Act. However, the ET should have asked itself the “reason why” the unfavourable treatment took place. In order for the treatment to amount to discrimination, the Claimant must demonstrate that her pregnancy or maternity leave is the reason she was treated in that way. In this case the indications were that the underlying reason for the Claimant’s treatment was an administrative error. It was unrelated to her pregnancy or maternity leave.
The EAT found, therefore, that the ET’s finding of unfavourable treatment could not stand. It remitted the case to the same tribunal for further consideration.
What to take away
This case serves a reminder that employers should take care not to treat a woman unfavourably because she is on maternity leave. However, the fact that the woman is absent on maternity leave when an act takes place is not sufficient to found a claim for discrimination. The fact of her being on leave would need to be a motivating factor behind the unfavourable treatment in order for a claim to succeed. Note, however, that in certain circumstances employers owe additional obligations to those on maternity leave, namely the right under Regulation 10 of the Maternity and Parental Leave Regulations to be considered for suitable alternative employment in a redundancy situation.