South West Yorkshire Partnership NHS Foundation Trust v Jackson & Ors

For discrimination under section 18(4) of the Equality Act 2010, it is insufficient that unfavourable treatment would not have occurred but for the woman taking maternity leave. The tribunal must determine the reason why the treatment occurred. Causation may be established where maternity leave operated on the decision-maker’s mind or where an inherently discriminatory rule was applied.

Sending an urgent work communication to an inaccessible work email address can amount to unfavourable treatment, even if no substantial loss results. However, an administrative error is not, without further analysis, treatment because of maternity leave.

The Trust appealed against an Employment Tribunal decision, sent on 12 March 2018, which upheld Mrs Pease’s maternity discrimination claim and awarded £5,000 compensation.

During a redundancy exercise, Mrs Pease was on maternity leave. An urgent redeployment email was sent to her work address, which she was not accessing. She learned of it several days later, promptly returned the form, and suffered no established substantive disadvantage. The Tribunal nevertheless found unfavourable treatment because she had exercised her right to maternity leave under section 18(4) of the Equality Act 2010.

The central issue was whether the Tribunal had lawfully found that the treatment was because Mrs Pease was exercising maternity-leave rights.

1. Appeal allowed and case remitted. The Employment Tribunal’s finding that Mrs Pease had been subjected to unfavourable treatment was upheld. An important and urgent work message sent to an email address which she could not access was capable of constituting unfavourable treatment, despite the absence of substantial harm.

2. The finding that this treatment was because Mrs Pease exercised maternity-leave rights could not stand. Section 18(4) of the Equality Act 2010 requires the Tribunal to ask why the unfavourable treatment occurred. Satisfaction of a factual but for test does not answer that question.

3. The Tribunal made no finding that maternity leave had operated on the sender’s mind. Nor did its findings and reasoning establish that the Trust had applied an inherently discriminatory criterion. The reasons did not explain why the work address alone was used or why Mrs Pease could not access it.

4. The Tribunal’s reasoning instead appeared to infer discrimination solely because Mrs Pease would not have been disadvantaged had she not been on maternity leave. That approach was legally insufficient. The findings concerning another claimant also indicated that the underlying cause might have been maladministration or administrative error.

5. The claim was not bound to fail. It was remitted to the same Tribunal, which was to decide whether further evidence or findings were required and then determine causation under the correct legal approach.

• Employment Appeal Tribunal — allowed the Trust’s appeal from the Employment Tribunal’s judgment sent on 12 March 2018, insofar as it found maternity discrimination, and remitted that issue to the same Tribunal.
• Employment Tribunal (Leeds) — upheld Mrs Pease’s claim under section 18(4) of the Equality Act 2010 and awarded £5,000 compensation.