In South West Yorkshire Partnership NHS Foundation Trust v Mr C Jackson & Others Ms Pease, one of 19 claimants in a group action against the Trust, was on maternity leave at the time of a redundancy exercise carried out by the Trust. All 19 had been dismissed following the decommissioning of the Trust's Health and Wellbeing Service in which they were employed and claimed unfair dismissal before the Employment Tribunal. Only Ms Pease and two others were on maternity leave at the time and they additionally claimed discrimination on maternity grounds under s18(4) of the Equality Act - in other words they had been discriminated against "because" they were exercising the right to maternity leave.
Although on maternity leave, Ms Pease had attended a meeting in July 2016 to discuss the forthcoming redundancies. Following that meeting she and her colleagues were put on the "at risk register". Two days later an email was sent to those at risk attaching a redeployment document that needed to be completed before HR started trying to match the affected employees with alternative roles. Ms Pease's email was sent to her work address but as she was on maternity leave and not accessing her work email she did not immediately receive it. On hearing that she may have missed out on something, a week later she contacted HR, was provided with the form and completed and returned it immediately.
The evidence before the Tribunal was that Ms Pease was not disadvantaged by the short delay in receiving the form. Nevertheless, the Tribunal did find that the incident had caused her legitimate concern and that amounted to unfavourable treatment. The Tribunal also found the unfavourable treatment was "because" Ms Pease was exercising her rights to maternity leave and consequently her claim of discrimination on maternity grounds was successful. She was awarded £5,000 compensation.
On appeal, the Trust argued that the Tribunal should not have found there was unfavourable treatment, that they had approached the question of causation wrongly and that the decision was perverse. Judge Shanks, in the EAT, described the arguments in relation to whether there was unfavourable treatment and perversity "hopeless" saying that having an important and urgent work message sent to an email address which one cannot access for some reason "must amount to unfavourable treatment one way or another".
However, in relation to the question of causation, the EAT were of the view that the tribunal had concluded there had been discrimination on the basis of the "but for" test - but for Ms Pease being on maternity leave this would not have happened. That was an error as the Tribunal should have asked itself the "reason why" the unfavourable treatment took place. In this case the Tribunal did not have enough factual material before it nor did they properly analyse the evidence sufficiently to be able to conclude that the reason why the unfavourable treatment occurred was discrimination on maternity grounds. The case was remitted back to the same Tribunal to consider whether they needed to hear more evidence and/or whether they should or could make further findings of fact and then reconsider the issue of causation.
Although on this occasion the EAT overturned the finding of discrimination, the EAT commented that on the material before them it was not possible to say that the claim was bound to fail (hence the remittal back to the Tribunal). The judgement also referred to the example given in the 2011 Code of Practice at paragraph 8.23 of a failure to consult a women on maternity leave about changes to her work or possible redundancy, confirming that it demonstrates that this is the type of action which could amount to maternity discrimination. While it will take more than a woman simply being absent on maternity leave for this type of discrimination to occur, it is a reminder of how careful an employer needs to be when keeping all staff up to date regarding changes in the workplace.