A woman on maternity leave was unfavourable treated, but not discriminated against, during a redundancy exercise after her employer sent an important email to an address she could not access, the Employment Appeal Tribunal (EAT) ruled.
Emma Pease, who worked as a health trainer for South West Yorkshire Partnership NHS Foundation Trust, was on maternity leave when she was identified as one of several employees at risk of redundancy.
However, as she did not have her work laptop with her while on maternity leave, she did not receive the email notice of three potential new job postings which required her to fill in a form and return it to the trust’s HR department as soon as possible.
The EAT upheld a previous ruling that, although it did not cause substantial harm, this amounted to unfavourable treatment by her employer.
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However, the EAT overruled the initial employment tribunal’s verdict that this also amounted to discrimination as it happened because she was exercising her right to maternity leave.
The EAT judge said although it would not have happened if Pease was not on maternity leave, the original tribunal had not considered whether Pease’s maternity leave was the reason why she was unfairly treated.
Pease, who worked for the trust between January 2014 until the end of her contract in October 2016, commenced her maternity leave in March 2016, initially for nine months. She planned to return to work on 3 January 2017 with the possibility of extending this by using some holiday entitlement.
On 23 July 2016 she attended a staff consultation meeting which detailed plans for redundancy and the consultation timeframe, but no one contacted her immediately afterwards about the process.
She then phoned Helen Cherry, who worked in the trust’s HR department, on 4 August and was advised she would be put on the “at risk” register. Pease received the redeployment preference form on 4 August and returned it completed the same day.
She had a one-to-one meeting on 22 August where she was asked to consider potential posts, but these were deemed unsuitable. She attended a second meeting on 21 September and was told she should be paid for her annual leave “but not offered any extension to her contract or the option of taking annual leave”.
The trust contended Pease had been offered a post known as the “Walk Well” job in Barnsley on 29 September, but she was adamant the job had never been offered. The tribunal heard the trust relied on an “email chain to support their contention”, but Pease was not able to access her work email to fill in the redeployment document and return it to HR.
As a result, she did not get notice of the email or fill in the form for several days, and Pease’s employment contract terminated on 2 October.
In a claim against the trust on 12 March 2018, a Leeds tribunal ruled Pease was unfavourably treated because she had exercised her right to take maternity leave. The judge found the communication with her work email which she was unable to access “left her in ignorance of three job opportunities” and “not having access to that information led to a legitimate concern” she was “being kept out of the loop”.
The trust appealed the judgment to the EAT, which found the initial tribunal did not properly approach the question of causation to justify the unfavourable treatment finding.
Judge Shanks, who presided over the EAT hearing, said having an important or urgent work message sent to an email address that was for some reason inaccessible seemed to amount to unfavourable treatment “one way or another”, but remitted the case to a further tribunal to consider if there was a cause of the unfavourable treatment.
Alan Davis, director for human resources, organisational development and estates at the South West Yorkshire Partnership NHS Foundation Trust, said he was please the EAT accepted there was “no evidence to support the original tribunal’s finding Pease was discriminated against because she was on maternity leave.
“There was an honest administrative error which was rectified quickly and which the trust believes did not disadvantage her from any redeployment opportunities,” Davis said. “Supporting our staff is a key priority for us so we will make sure we learn from any mistakes to make our care better.”
Glenn Hayes, partner and head of employment (North) at Irwin Mitchell, told People Management the key takeaway from this case is that individuals on maternity leave need to be involved in the redundancy process.
“Before someone goes on maternity leave, agree on how to contact them and keep them updated on happenings in the workplace,” Hayes said. “Employers need to think about what information is being passed and what the best medium it will be to get it to the person on maternity leave.”
He suggested employers could give individuals on maternity leave transcripts or recordings of important work meetings if they cannot physically attend.
Pease could not be reached for comment.