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This article was published on April 8th, 2019
An employer discriminates against a woman if they treat her unfavourably because she is taking maternity leave. In SW Yorkshire NHS Trust v Jackson, the employee was on maternity leave when redundancies were announced. She attended a consultation meeting and was put at risk of redundancy. Redeployment information was sent to her work email account which she was not accessing while on maternity leave. She found out about the email, contacted the employer and got the relevant redeployment forms anyway. In reality, she was not disadvantaged by the short delay but she was concerned by it.
The employment tribunal found that the delay in finding out about job opportunities was unfavourable treatment. The employer appealed. The Employment Appeal Tribunal agreed that sending an email to an inaccessible email account was unfavourable treatment. However, the employment tribunal had not asked the ‘reason why’ the treatment occurred. The important question was whether the unfavourable treatment was ‘because of’ maternity leave (which would be discriminatory) or for another non-discriminatory reason, such as an administrative error.
The employment tribunal had not looked at the reason why the email had been sent to the employee’s work email address. Nor was there any information about why the employee was not accessing her emails. Both of these things were important. The case was sent back to the employment tribunal to find out this information and decide the case again.
This case demonstrates the importance of agreeing on communication methods with employees before their maternity leave starts. Confirm phone numbers and email addresses and ensure anyone contacting the employee understands what has been agreed.