The Equality Act 2010 states that direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic. For direct discrimination because of pregnancy and maternity, the test is whether the treatment is “unfavourable” rather than “less favourable”. There is no need for the woman to compare her treatment with that experienced by other workers who are not pregnant or not on maternity leave.
In a recent case, the Claimant was on maternity leave while a redundancy exercise was being carried out. An e-mail which required the Claimant to fill in a redeployment document and return it to HR as soon as possible was sent to her work e-mail address which she was not accessing whilst on maternity leave. As a result, she did not get notice of the e-mail or fill in the redeployment form for approximately 9 days, following which time she contacted HR having learnt that she had missed out on an important communication. Whilst this did not cause her any disadvantage during the redundancy process in her search for alternative employment, she claimed that the failure to notify her of the three potential job matches in a timely fashion amounted to “unfavourable treatment” as a direct consequence of her being on maternity leave.
The Claimant brought a claim for sex discrimination in the employment tribunal. She successfully argued at the employment tribunal that she was unfavourably treated because the trust failed to communicate with her adequately regarding the redundancy exercise. The employment tribunal found that the unfavourable treatment was "because" she was exercising her rights to maternity leave and thus amounted to discrimination. In making this finding, the employment tribunal held that the anxiety resulting from the miscommunication, the missed opportunity to provide her details to the HR team and the Claimant’s temporary ignorance of the three potential job matches was a direct consequence of her maternity leave. The tribunal consequently awarded the Claimant £5,000.
On appeal, the Employment Appeal Tribunal (EAT) accepted that sending an important and urgent work message to an email address that the claimant cannot access is "unfavourable treatment". The EAT acknowledged that a failure to consult a woman on maternity leave about changes to her work, or about possible redundancy, is potentially discriminatory.
However, the EAT held that, the tribunal had failed to establish causation. The EAT commented that the employment tribunal should not have considered whether or not the unfavourable treatment would have taken place but for the claimant's maternity leave (i.e. the "but for" test). The employment tribunal should instead have asked itself the reason why the unfavourable treatment took place (i.e. the "reason why" test). In order for the discrimination claim to succeed there would need to be some evidence of a discriminatory motive behind the error i.e. that the individual who sent the misdirected email was motivated by a discriminatory attitude in relation to the Claimant being on maternity leave. In this case, the fact that the Claimant was on maternity leave was the context for the unfavourable treatment but it was not necessarily the reason for it.
Whilst this case does not establish any new legal principle, it confirms that, in any discrimination claim, the claimant is required to establish that the actual reason for the unfavourable treatment is their protected characteristic. Where the employment tribunal needs to make findings about the mental processes of the relevant decision maker in order to decide whether the treatment complained of was discriminatory, the actual reason for the unfavourable treatment should be established. That said, an employer that fails to communicate adequately with their employee on maternity leave, even where there is no discriminatory motive for failing to do so, will place itself at risk of a discrimination claim as well as an unfair dismissal claim where the employer may be looking to dismiss the employee during or shortly after a period of maternity leave without proper consultation.
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