In this case the employee, along with several colleagues, was aware she could be at risk of redundancy. An email was sent to them that confirmed they were being put on an ‘At Risk Register’ and instructed them to fill out a redeployment document. As the employee was on maternity leave at the time and the email went to her work address, she did not receive it.
The employee soon chased this up and was eventually sent the relevant form a week later. No evidence suggested that she was disadvantaged by the delay. Despite this, the employee claimed that this delay amounted to unfavourable treatment as she was exercising her right to maternity leave, making it discrimination under section 18(4) of the Equality Act 2010.
The employment tribunal (ET) upheld her claim. In forming their decision, they applied the ‘but for’ test, outlining that ‘but for’ her maternity leave, the employee would not have been subjected to the unfavourable treatment that arose from the delay in receiving the form.
The organisation appealed this decision to the Employment Appeal Tribunal (EAT). The EAT agreed with the ET that these circumstances did amount to unfavourable treatment.
Despite this, they outlined that the ‘but for’ test was an insufficient basis for the finding of discrimination, explaining that the correct test in this situation was the ‘reason why’ test. The tribunal should have asked if the maternity leave was the ‘reason why’ the employee had been treated unfavourably. This, they held, would be the case if the treatment was inherently discriminatory or if the employee being on maternity leave had actually operated in the minds of those sending the email.
From what the EAT could establish, no facts had been produced which clearly demonstrated that the unfavourable treatment was a direct result of the employee being on maternity leave. For example, the ET’s judgement had not considered why the sender of the email had used the work address or why the employee could not access her work emails.
As the ET had failed to establish this, the EAT remitted the case back to the same tribunal for further review.
When an employee is on maternity leave, organisations should keep her informed of promotion opportunities, or changes affecting the workplace, such as redundancies or restructurings. Prior to the commencement of the leave, correct contact details should be established and an organisation should follow up on emails with letters and calls to ensure any important information has been received.
This case also highlights that tribunals will determine whether any unfavourable treatment experienced by an employee on maternity leave was due to her pregnancy or maternity, or whether it was due to some other reason.