In the latest of our posts on cases from the Employment Appeal Tribunal archive, we examine the case of Johal v Commission for Equality & Human Rights  UKEAT 0541_09_0207, a maternity discrimination case.
The Employment Appeal Tribunal held that the causative factor for the detriment that Ms Johal had suffered (applying the “reason why” causation test) was a genuine administrative error, rather than because Ms Johal was on maternity leave.
Factual background in Johal v Commission for Equality & Human Rights
Ms Johal commenced employment with the Commission for Equality and Human Rights (“CEHR”) as a Personal Assistant on 1 April 2002 and in April 2005 she became PA to the Director of Corporate and Government Relations.
On 3 December 2007 Ms Johal informed Human Resources that she wished to take maternity leave from 1 December 2007 to 5 January 2009, and requested that she be kept on the IT network whilst she was on maternity leave (as she wished to be kept updated on vacancies and training packages whilst she was on maternity leave).
At the time that Ms Johal went on maternity leave the CEHR was undergoing an internal reorganisation, as the CEHR had been formed on 1 October 2007 from the amalgamation of three legacy commissions (the EOC, CRE, and DRC). In December 2017 Debbie Wood, Director of the Commissioner’s office (and Ms Johal’s ‘de factor’ line manager at the time) was considering, as part of the reorganisation, creating the post of Commissioner’s Office Manager. This post was subsequently approved as a ‘level four’ position, whereas Ms Johal’s role was evaluated at ‘level three’.
On 29 February 2008 Ms Johal emailed Human Resources and the IT Services Desk to ask that her work email account, which had lapsed in December 2007, be reactivated. This was done the same day.
On 4 March 2008 Ms Johal attended a one-to-one meeting with Ms Wood. On that day Ms Johal was informed of the new Commissioner’s Office Manager post, and the need for the office manager was explained to her. Ms Johal did not say that she was interested in this post, nor did she suggest she wished to move into a policy role. The next day Ms Wood emailed her to inform her that she would be kept updated on any further developments and job vacancies.
On 20 March 2008 Ms Wood received approval for the Office Manager role and this vacancy was advertised in the summer of 2008. Ms Johal did not access the website on which the vacancy was advertised and, due to what the Tribunal found was an administrative error, the CEHR did not notify her of the vacancy. She therefore did not apply for the role and it was filled by another employee in the office.
After finding that the Office Manager role had been filled Ms Johal complained that she had not been notified of such while on maternity leave. Ms Wood stated that she would follow up with Human Resource, she having previously informed them to keep Ms Johal updated on job vacancies. Mr Unwin in the IT Department apologies for the breakdown in communication – having reinstated her access in February 2018 her access has then been disabled again accidentally at a later date.
Ms Johal complained in a formal grievance on 24 September 2008 that she had been overlooked for a promotion opportunity. The grievance outcome concluded that there had been a communication failure by the CEHR but that Ms Johal had failed to use the link to the recruitment site that had been sent to her. Ms Johal appealed this outcome and the appeal outcome again shared responsibility for the failure between Ms Johal and the CEHR.
The Employment Tribunal’s decision
The Employment Tribunal held that the failure to keep Ms Johal notified of vacancies at the CEHR whilst she was on maternity leave was a detriment, but the “reason why” she was subjected to this detriment was because of a genuine administrative error on the CEHR’s part – others on maternity leave received appropriate information.
The Employment Tribunal therefore dismissed Ms Johal’s claim for sex discrimination.
Ms Johal appealed the Employment Tribunal’s decision.
The Employment Appeal Tribunal’s decision
The Employment Appeal Tribunal dismissed the appeal, holding that the Employment Tribunal had been entitled to conclude on the facts before it that the “reason why” Ms Johal had been subjected to the detriment was because of a genuine administrative error.
Our solicitors’ comments on Johal v Commission for Equality & Human Rights
Chris Hadrill, an employment solicitor at Redmans, commented on the case: “The Johal case is a much-quoted case when examining causation in discrimination cases – employers must take reasonably practicable steps to ensure that employees who are on maternity leave are treated in no less favourable manner than employees who have not taken maternity leave, otherwise they could face a claim for discrimination.”
The decision of the Employment Appeal Tribunal in Johal v Commission for Equality & Human Rights can be found here.