Employment Cases Update

South West Yorkshire Partnership NHS Foundation Trust v Jackson and others UKEAT/0090/18/BA

Date published: 08/03/2019

Appeal against the ET’s decision that the Claimant was unfavourably treated because she had exercised her right to take maternity leave. Appealed allowed in part.

The Claimant (with 18 other Claimants) was made redundant while she was on maternity leave. In addition to claiming unfair dismissal, she alleged discrimination on maternity grounds under s 18(4) Equality Act 2010, on the grounds that the Respondent did not communicate adequately with her regarding the redundancy exercise. The ET upheld her claim, and the Respondent appealed, arguing that: the ET should not have found that there was "unfavourable treatment"; the ET did not properly approach the question of causation, so as to justify a finding that the unfavourable treatment was discriminatory; and the decision was perverse.

The EAT dismissed the first and third points but, on the question of causation, it held that the ET had made no finding to the effect that the characteristic of being on maternity leave operated on anyone's mind, and there was insufficient factual material or analysis by the ET to say that it had decided that an inherently discriminatory rule was applied in this case; also, it appeared that the ET had simply applied a "but for" test – but for being on maternity leave, the Claimant would not have been disadvantaged – and that was not sufficient for a finding of discrimination. Accordingly, the case would be remitted to the same ET.

Employment Claims without a Lawyer 2nd edition published March 2018

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