Opinion

Administrative errors may not amount to unfavourable treatment

26th March 2019

Administrative errors may not amount to unfavourable treatment

The Employment Appeal Tribunal has recently held that an administrative error sending an email intended for an employee on maternity leave to an inaccessible email address will not amount to unfavourable treatment under section 18 of the Equality Act.

In the case of South West Yorkshire Partnership NHS Foundation Trust v Jackson and others, it was held that an administrative error which meant an employee on maternity leave did not receive an email containing her redeployment form did not amount to unfavourable treatment under section 18 of the Equality Act.

Mrs Pease had been on maternity leave while her employer began the redundancy process. Despite attending meetings to discuss the redundancies planned by her employer, Mrs Pease did not receive the form required in relation to redeployment. The reason being that the form was sent to her work emails which she was not accessing while on maternity leave. Mrs Pease only received the form after contacting HR herself about the fact she had not received the form. The tribunal held that the delay in receiving the form did not impact on the search for an alternative post for Mrs Pease.

Mrs Pease brought a claim for unfavourable treatment under section 18(4) of the Equality Act 2010 which states “A person discriminates against a woman if he treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave”.

Both the tribunal and Employment Appeals Tribunal (EAT) held the act of sending the email to an email address that could not be accessed is “unfavourable treatment”. However, the EAT felt the tribunal’s use of a “but for” test of causation was incorrect and that they should have instead used the “reason why” test to determine whether section 18(4) had been breached.

This means that the relevant question is not whether this unfavourable treatment would have occurred but for Mrs Pease being on maternity but whether Mrs Pease being on maternity leave was the reason why the unfavourable treatment took place. The former was considered by the tribunal and the answer was held to be yes. However the EAT held that for a section 18 claim to succeed, it is the latter which must be satisfied as the fact that an employee is on maternity leave must be the reason for the unfavourable treatment.

The EAT remitted the case to decide whether the answer to the “reason why” test was because of an administrative error and therefore the claim is unsuccessful or whether it is because of a discriminatory motive and the claim should succeed.

Considerations for Employers

While this case should be of comfort to employers who fall foul to an administrative error while completing a redundancy process, it should serve as a reminder to take care when so doing. In particular, thought should be given on how best to communicate with employees who are currently absent from the workplace such as those on maternity leave or sick leave.

Please contact a member of the Employment team if you have any questions relating to conducting a redundancy process.

 

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