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Email to inaccessible work address during maternity leave was unfavourable treatment

06 March 2019 #Discrimination

In SW Yorkshire Partnership NHS Foundation Trust v Jackson, the Claimant was involved in a redundancy exercise whilst on maternity leave.  Her employer sent an important email containing details of redeployment opportunities to her work email which she was not accessing.  This caused a delay in her getting the email.  She brought a claim for discrimination claiming that she had been treated unfavourably because she was exercising her right to take maternity leave.

The Tribunal (and subsequently the EAT) held that, whilst the Claimant did not suffer any substantial harm from the employer’s actions, they had caused her legitimate concern which amounted to unfavourable treatment.   The Tribunal further found that the treatment was ‘because’ she was exercising her rights as set out above.  However, the EAT disagreed with this part of the Tribunal’s finding.  It highlighted that although the treatment would not have occurred ‘but for’ the maternity leave, this was not the correct test to apply.  The Tribunal should have looked at the ‘reason why’ she had been treated unfavourably.    

The case has been remitted to the Tribunal to consider this latter point further.  Whilst we, therefore, have no definitive ruling on the case at this stage, the comments by the Tribunal and EAT do show that an email sent to an inaccessible email address can constitute unfavourable treatment, satisfying at least that part of the test for discrimination.  

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Louise Merrell

Louise Merrell
Associate

E: lmerrell@clarkslegal.com
T: 020 7539 8082
M: 0779 900 7325