Can it be unfavourable treatment under the Equality Act 2010 to send a woman on maternity leave an important email at an email address that she cannot access?
Yes, held the EAT in SW Yorkshire Partnership NHS Foundation Trust v Jackson. However, a tribunal needs to consider the reason why the email was sent in that way.
Whilst on maternity leave, the Claimant was one of several staff put at risk of redundancy. The HR department sent to her (inaccessible) work email details of redeployment opportunities. She did not find out about them for several days, and although this caused no substantial harm, it was a legitimate concern, and her a claim for unfavourable treatment under s18(4) Equality Act succeeded; the tribunal upheld the claim as the Claimant did not get the email 'because' she was on maternity leave.
The EAT held that the tribunal had erred in applying the test for causation. Although the unfavourable treatment would not have happened 'but for' taking maternity leave, the tribunal should have considered the reason why the email was sent to the Claimant's work email. There was no finding on this point. The 'reason why' test can be satisfied where a rule is applied which is inherently discriminatory, or where the protected characteristic has actually operated on the discriminator's mind. The case was remitted for further findings.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.