The Employment Appeal Tribunal (EAT) has considered whether an email sent to the work email address of a woman on maternity leave amounted to unfavourable treatment on grounds of maternity leave.

South West Yorkshire Partnership NHS Foundation Trust v Jackson and others EAT/0090/18

Facts

The claimant (P) was one of a group of staff put at risk of redundancy. She was on maternity leave, but was sent an important email to her work email address regarding opportunities for redeployment. P was unable to access her work emails and only became aware of the message several days later. Following their redundancy, a group of the employees brought a claim for unfair dismissal against the Trust. P also successfully claimed discrimination on the grounds of maternity, and was awarded a sum of £5,000 in compensation. The Trust appealed against the decision of the employment tribunal.

EAT decision

The EAT has confirmed that the sending of the email to the work email address amounted to unfavourable treatment. However, it held that the tribunal had applied the wrong test of causation in concluding that the claimant’s maternity leave was the reason for the unfavourable treatment. The ‘but for’ test was not the correct approach; the tribunal should have considered the reason why the email was sent to the claimant’s work email address. For example, it might have been due to an administrative error, meaning that it was not necessarily discrimination on grounds of maternity. The case was remitted to be reheard.

Consequences

This decision illustrates the importance of ensuring that women on maternity leave (or indeed employees taking any sort of extended leave) are kept properly up to date in a redundancy situation. It is always advisable to agree a preferred method of communication during an individual’s period of leave, and ensuring this is adhered to in practice. However, if an employer can show that an email is sent to the wrong address simply due to administrative error, this may be sufficient to defend a discrimination claim.