The EAT overturned a finding of pregnancy and maternity discrimination in relation to a redundancy exercise in South West Yorkshire Partnership NHS Foundation Trust v Jackson. The employee's absence on maternity leave was not necessarily the reason for her unfavourable treatment.

Women have the right not to be treated unfavourably because they are exercising their right to maternity leave. In South West Yorkshire Partnership NHS Foundation Trust v Jackson the EAT had to decide whether unfavourable treatment of an employee on maternity leave was an act of pregnancy and maternity discrimination. It concluded that it was not – it did not automatically follow from the fact that the employee was on maternity leave when the treatment occurred that it was because of the employee's maternity leave.

A redundancy situation arose at Mrs Pease's workplace while she was on maternity leave. Although the employer had told her about the situation and she had been invited to and attended a meeting at the workplace to discuss it, an email about redeployment was subsequently sent to her work email address. As the employee was not accessing her work emails, she did not receive it immediately, only finding out about it a short time later. There was no evidence that this delay caused her any disadvantage. However, she claimed that sending the email to her work email address was pregnancy and maternity discrimination and the tribunal agreed, because it arose as a consequence of exercising her right to maternity leave. It awarded £5,000 in compensation.

The EAT overturned that decision. Sending an important and urgent work message to an account that the employee could not access was unfavourable treatment. However, it was not sufficient that the treatment would not have occurred "but for" the employee's maternity leave. There was no evidence that the treatment was motivated by a discriminatory attitude towards maternity leave, nor was there evidence that an inherently discriminatory rule was applied. It appeared that the underlying reason for the treatment could have been simple administrative error. The tribunal appeared to have decided that but for the employee being on maternity leave she would not have been disadvantaged, but that was not sufficient for a finding of discrimination. The claim was remitted for further consideration.

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