The EAT overturned a finding of pregnancy and maternity discrimination in relation to a redundancy exercise in South West Yorkshire Partnership NHS Foundation Trust v Jackson. The employee's absence on maternity leave was not necessarily the reason for her unfavourable treatment.
Women have the right not to be treated unfavourably because they
are exercising their right to maternity leave. In South West
Yorkshire Partnership NHS Foundation Trust v Jackson the EAT
had to decide whether unfavourable treatment of an employee on
maternity leave was an act of pregnancy and maternity
discrimination. It concluded that it was not – it did not
automatically follow from the fact that the employee was on
maternity leave when the treatment occurred that it was because of
the employee's maternity leave.
A redundancy situation arose at Mrs Pease's workplace while
she was on maternity leave. Although the employer had told her
about the situation and she had been invited to and attended a
meeting at the workplace to discuss it, an email about redeployment
was subsequently sent to her work email address. As the employee
was not accessing her work emails, she did not receive it
immediately, only finding out about it a short time later. There
was no evidence that this delay caused her any disadvantage.
However, she claimed that sending the email to her work email
address was pregnancy and maternity discrimination and the tribunal
agreed, because it arose as a consequence of exercising her right
to maternity leave. It awarded £5,000 in compensation.
The EAT overturned that decision. Sending an important and urgent
work message to an account that the employee could not access was
unfavourable treatment. However, it was not sufficient that the
treatment would not have occurred "but for" the
employee's maternity leave. There was no evidence that the
treatment was motivated by a discriminatory attitude towards
maternity leave, nor was there evidence that an inherently
discriminatory rule was applied. It appeared that the underlying
reason for the treatment could have been simple administrative
error. The tribunal appeared to have decided that but for the
employee being on maternity leave she would not have been
disadvantaged, but that was not sufficient for a finding of
discrimination. The claim was remitted for further
consideration.
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