Former Employment law judge and Mediator at Trinity barristers, Michael Malone has prepared the following analysis that will be of interest to employment lawyers and solicitors, specifically in relation to discrimination law and dealing with protected characteristics.
One of the employment law cases recently reported on the EAT website breaks no new ground but emphasises a fundamental principle which is sometimes overlooked.This is the principle that treating a person less favourably than a person with a different protected characteristic, such as ethnic origin or gender (or, in pregnancy and maternity leave cases, simply treating a person unfavourably) is not necessarily unlawful discrimination. The reason for the treatment must also be considered.
Occasionally the reason is obvious, because the treatment is based on a criterion which is inherently discriminatory. The case of James v Eastleigh Borough Council [1990] 2 AC 751 is an obvious example. Admission to the swimming pool was free for pensioners. At that time the pension age was 60 for women and 65 for men. Mr and Mrs James were both 61. She got in free. He had to pay. It was not necessary to look into the minds of any of the members or officers of the council to see that there had been sex discrimination against Mr James.
Most cases are less obvious and 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 wholly or partly for a prohibited reason. Often those findings will be made on inferences which the tribunal can draw from the evidence (or sometimes the lack of evidence from the decision maker) but the findings do need to be made explicitly by the tribunal.
The recent case is South West Yorkshire Partnership NHS Foundation Trust v Jackson and others EAT/0090/18. This was a complicated case with 19 claimants and the hearing took 14 days. The decision of the employment tribunal was challenged on only one issue, affecting only one claimant, Mrs Pease.
The claimants were made redundant following the decommissioning of the particular Trust service in which they worked. Three of them, including Mrs Pease, were on maternity leave at the time of the redundancies. Mrs Pease, although she was on maternity leave, attended a meeting on 26 July to discuss the forthcoming redundancies. The next day the claimants were all put on the At Risk Register. The day after that, 28 July, Mr E on behalf of the Trust sent an email to the claimants, enclosing a form and guidance notes regarding possible redeployment. In the email he asked the claimants to complete the form as fully as possible and to send it back as soon as possible.
Unfortunately Mrs Pease did not receive the email on 28 July. It was sent to her work email address and she was not accessing her work emails. However she found out very quickly that there was something she should have had and she telephoned on 4 August. A copy of the email and the form were then sent immediately to her home email address.
The employment tribunal found that because of the one week delay Mrs Pease was unaware of three possible job opportunities. She did not suggest that any of them would have been suitable for her, but not having the information ‘led to a legitimate concern that she was being kept out of the loop’.
Mrs Pease’s complaints to the tribunal included a complaint of discrimination on maternity grounds. The definition is different from that of other species of direct discrimination, in that the definition involves ‘unfavourable treatment’, not necessarily ‘less favourable treatment’ than that of a person without the relevant protected characteristic. However the definition also includes a causation test. The unfavourable treatment must be ‘because’ the claimant is (in this case) exercising her right to maternity leave.
The employment tribunal upheld the complaint of discrimination and subsequently awarded compensation of £5,000. The tribunal found that the claimant had been unfavourably treated during the week from 28 July to 4 August. That finding was upheld by the EAT. It was unfavourable treatment to have ‘an important and urgent work message sent to an email address which one cannot access for some reason’.
The employment tribunal also found that the causation test was satisfied, because the unfavourable treatment ‘was a direct consequence of Mrs Pease’s maternity leave whereby she was out of the workplace’. This was where the tribunal went wrong. The fact that Mrs Pease was on maternity leave was the context for the unfavourable treatment but it was not necessarily the reason for it. The ‘but for’ test was not sufficient to establish that reason. There were two other claimants on maternity leave but they received the email on 28 July. There were possible non-discriminatory reasons why Mrs Pease did not receive it. There may simply have been an administrative error. In the EAT, Judge Shanks pointed out that the employment tribunal had identified errors and miscommunications in relation to one of the other claimants who was on maternity leave but had expressly found that the relevant decision makers were not ‘in any way influenced’ by her protected characteristic’. In Mrs Pease’s case, the tribunal had ‘made no finding to the effect that the characteristic of being on maternity leave operated on anyone’s mind’. There was no sustainable finding one way or the other as to the reason for the unfavourable treatment.
Accordingly the appeal was allowed and the matter remitted to the tribunal to consider that question, if necessary after hearing further evidence and making further findings of fact.
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