HR practitioners, even some line managers, know full well that an employee at risk of redundancy when they are on maternity leave has certain rights to protect them from unfair treatment. Charles Wynn-Evans outlines how employers can nevertheless face a tribunal claim.
The recent case of SW Yorkshire Partnership NHS Foundation Trust v Jackson is a useful reminder of the risks of discrimination claims to which employers can expose themselves if they neglect or ignore the position of staff who are on maternity leave.
Jackson was on maternity leave when, along with a number of colleagues, she was put at risk of redundancy. The employer notified the employee of various opportunities for redeployment but these were sent to her work email address. As a consequence, she did not see the email until she learned subsequently that she had missed something and contacted the employer, whereupon the email was sent to her personal email address.
The employment tribunal found that the employee had been subjected to unfavourable treatment because she was exercising her right to maternity leave and that her treatment therefore constituted discrimination contrary to section 18(4) of the Equality Act 2010.
Redundancy when on maternity leave
The tribunal decided that the reason the employee did not receive the email detailing the alternative opportunities available was that she was on maternity leave. Her claim for unfavourable treatment succeeded on the basis of “failure adequately to communicate with [the employee] with regard to the redundancy exercise”.
However, at the Employment Appeal Tribunal the employer succeeded on the basis that the employment tribunal had applied the wrong approach to assessing whether the employer’s actions were discriminatory.
In its assessment of the employment tribunal’s decision, the EAT noted that the employment tribunal had made no finding as to why the email had been sent to the employee’s work email address or why she could not access the email in question. Also, this was not a case where the fact that the employee was on maternity leave had “operated on the employer’s mind” – i.e. influenced its actions – or where the employer had applied a discriminatory approach or criterion to the employee. It also appeared to the EAT that the situation might simply have arisen due to an administrative error.
The EAT accepted that to send an important and urgent work message to an employee in an email which the employee cannot access for some reason amounted to unfavourable treatment “one way or another”.
However, the employment tribunal’s decision was flawed in its approach to causation – the reason for the unfavourable treatment and whether it was the employee’s being on maternity leave and therefore discriminatory. The employment tribunal had found that the unfavourable treatment about which the employee brought her claim (not receiving the email in question) would not have happened had she not been on maternity leave – to adopt the legal jargon it would not have arisen “but for” the fact that the claimant employee was on maternity leave. The EAT held that this was an incorrect approach and that the employment tribunal should have considered instead the “reason why” the unfavourable treatment had occurred in determining whether the employer’s actions were unlawfully discriminatory.
The EAT concluded that the employment tribunal’s decision could not stand, allowed the appeal and remitted the case back to the employment tribunal to consider the claim again, applying the correct analysis with additional evidence if necessary. As the EAT noted at the appeal stage, the delay of only a matter of days in the employee receiving the email did not disadvantage her – it is therefore unclear what level of compensation might be recoverable, whether in respect of financial loss or injury to feelings, if the claim is upheld.
An earlier example of the possibility of a claim of unfavourable and discriminatory treatment as a result of an employer’s inadequate communication with an employee on maternity leave is Visa International Service Association plc v Paul (2004). In that case, an employee succeeded in a claim of discrimination, and indeed for breach of the implied duty to maintain trust and confidence, where her employer had failed, during her maternity leave, to inform her of a vacancy for which she would have wished to apply had she been aware of it.
The relevant legislation – regulation 12A(4) of the Maternity and Parental Leave etc Regulations 1999 – does allow for employers to be entitled to have “reasonable contact” with their employees whilst on maternity leave. What counts as reasonable contact will of course depend on the particular circumstances. This provision is the basis upon which it is legitimate for an employer to contact an employee during maternity leave to address issues such as arrangements for the employee’s return to work at the end of the maternity leave period.
Ahead of an employee going on maternity leave, employers may wish to discuss with the employee what degree of ongoing contact the employee wants in terms of continuing to receive details of social events, company newsletters and the like. However, as these cases demonstrate and regardless of the eventual result in Jackson, the employer’s obligations are ongoing.
Employers should be alive to the need to ensure that communications with an employee who is on maternity leave raise proactively with the individual issues that are relevant to the employee’s employment, career advancement and otherwise – and that the means of communication with the employee, whether to a personal or work email address, is agreed, complied with and effective.