When does unfavourable treatment amount to discrimination?


An Employment Tribunal found South West Yorkshire Partnership NHS Foundation Trust had unlawfully discriminated against an employee by sending an important email to her work account which she did not have access to because she was on maternity leave.

The Employment Appeal Tribunal (EAT) upheld the employer's appeal, saying that the Employment Tribunal (ET) had applied the wrong test.

The EAT said that the ET must consider why the email was sent in that way in order to decide whether the conduct was discriminatory.

The Facts

Mrs Pease was on maternity leave while the Trust was carrying out a redundancy process. An email was circulated requiring action from those at risk of redundancy, however it was sent to Mrs Pease's work email address to which she did not have access.

It was several days before she realised the omission.

She requested and received the email.

Although no evidence was put before the ET to suggest that Mrs Pease suffered a disadvantage as a result of this, the ET found that the conduct amounted to unfavourable treatment and that the unfavourable treatment was 'because' Mrs Pease was exercising her rights to maternity leave.

Therefore, this treatment amounted to discrimination under section 18 of the Equality Act 2010. Mrs Pease was awarded £5,000 in compensation. The Trust appealed.

The Decision

The EAT agreed with the ET that this was unfavourable treatment but found that the ET had not applied the proper test of causation in order to conclude that the unfavourable treatment was 'because' of the maternity leave and therefore discriminatory.

The ET had come to its conclusion on the basis that 'but for' the maternity leave, the unfavourable treatment would not have happened.

This was an insufficient basis for a finding of discrimination.

The ET ought to have considered whether the maternity leave was the reason why Mrs Pease had been treated unfavourably.

This would be the case if either the treatment was inherently discriminatory or if the fact of Mrs Pease's being on maternity leave had actually operated on the minds of those sending the email.

The EAT therefore remitted the case back to the ET to properly consider this issue of causation.

What Can You Learn From This Case?

Discrimination cannot be found simply on the basis of a 'but for' test: but for the protected characteristic, would the unfavourable treatment have occurred?

The correct test to determine whether unfavourable treatment is discriminatory is a 'reason why' test: was a protected characteristic the reason why the unfavourable treatment happened?

In practical terms, however, this case is a good example of the need to make sure that letters about redundancies and other important issues are accessible to those on long term absences, including those on maternity leave.

It may be beneficial to confirm contact details before someone takes a period of leave.