The Employment Appeal Tribunal (EAT) in the case of SW Yorkshire Partnership NHS Foundation Trust v Jackson has ruled that under the Equality Act 2010, it is not unfavourable treatment to send a woman on maternity leave an important email at an email address that she cannot access.

However, a tribunal needs to consider the reason why the email was sent in that way.

While on maternity leave, Ms Jackson was one of several staff put at risk of redundancy. The HR department sent to her inaccessible work email details of redeployment opportunities, which she did not find out about for several days. Although this caused no substantial harm, it was a legitimate concern, and her a claim for unfavourable treatment under s18(4) of the Equality Act was upheld an Employment Tribunal (ET) as she did not get the email because she was on maternity leave.

However, the EAT ruled that the ET had erred in applying the test for causation, as it should have considered the reason why the email was sent to the claimant's work email. There was no finding on this point. The 'reason why' test can be satisfied where a rule is applied which is inherently discriminatory, or where the protected characteristic has actually operated on the discriminator's mind.

The case was remitted for further findings.

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