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TIn the case of South West Yorkshire Partnership NHS Foundation Trust v Mr Jackson & Others, UKEAT/0090/18/BA the Employment Appeal Tribunal (the ‘EAT”) held that the Employment Tribunal (the ‘ET’) had applied the wrong test to the issue of causation when upholding an employee’s claim for unfavourable treatment because she exercised her statutory right to take maternity leave.

The factual background of South West Yorkshire Partnership NHS Foundation Trust v Mr Jackson & Others

South West Yorkshire Partnership NHS Foundation Trust (the ‘Respondent’) had a Health and Wellbeing Service which was decommissioned. 

On 26 July 2016 Mrs Pease attended a meeting to discuss forthcoming redundancies.  The day after, she was put on the At-Risk Register.  On 28 July 2016 an e-mail concerning the redundancy process was sent to Mrs Pease’s work e-mail address.  She did not receive it as she was not checking her work e-mail as she was on maternity leave.  She eventually received the information on the 4 August and was not in fact disadvantaged in any way by the short delay.

Mrs Pease went on to be dismissed by reason of redundancy and subsequently she made a claim in the ET under section 18(4) of the Equality Act 2010 (the “EqA”).

The Law

Section 18(4) of the Equality Act 2010 provides that:

‘A person (A) discriminates against a woman if A treats her unfavourable because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.’

The decision of the Employment Tribunal

The Employment Tribunal (“ET”) upheld Mrs Pease’s claim. They held that the delay in contacting her was a detriment and unfavourable treatment because it arose as a consequence of her exercising her right to maternity leave.  She was awarded £5,000 as compensation for her ‘section 18’ claim.

The Respondent appealed to the EAT arguing that the ET had not properly approached the question of causation.

The decision of the Employment Appeal Tribunal

The Employment Appeal Tribunal (“EAT”) held that the ET was wrong in its approach to causation. In doing so, they referred to the case of Indigo design Build & Management Limited v Anor v Martinez and the decision of Judge Richardson.  In that case, the EAT had considered the question of causation in the context of section 18 of the EqA and stated that an ET must ask itself the standard ‘reason why’ question in relation to why the unfavourable treatment took place. 

The EAT found that the ET made no finding to the effect that the characteristic of being on maternity leave had operated on anyone’s mind when sending the e-mail to Mrs Pease’s work e-mail address.  They also found that the ET had incorrectly applied a ‘but for’ test; but for being on maternity leave, Mrs Pease would not have been disadvantaged.  Finally, they found that the underlying reason why Ms Pease was e-mailed incorrectly on her work e-mail address may have simply been an administrative error and as such, whilst unfavourable treatment, was not because the decision makers were in any way influenced by the fact that the Claimant was on maternity leave.

As a result, they held that the finding of discrimination could not stand and remitted it back to the ET that originally heard Mrs Pease’s case to consider the case again, directing themselves properly in relation to causation.

Our solicitors’ views on the case of South West Yorkshire Partnership NHS Foundation Trust v Mr Jackson & Others

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “A practical point employers can take away from this case is to  agree with pregnant employees, before they go on maternity leave, how they wish to be contacted whilst on it and update systems accordingly so as to avoid the possibility of claims like this one’.

The decision of the Employment Appeal Tribunal in South West Yorkshire Partnership NHS Foundation Trust v Mr Jackson & Others UKEAT/0090/18/BA can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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