Employment Law Case Update: Pease v South West Yorkshire Partnership NHS Foundation Trust

It’s always a good idea to be sure your employees have heard from you, particularly those on maternity leave.  Our Employment Law team reviews a recent case in which an employer failed to communicate with their employee correctly regarding redundancies at the business, and found themselves in Tribunal as a result.

In the case of Pease v South West Yorkshire Partnership NHS Foundation Trust, Ms Pease was working as a health trainer for South West Yorkshire Partnership NHS Foundation Trust, when she commenced maternity leave in March 2016.

On 23 July 2016, she attended a consultation meeting detailing plans for redundancy. On 4 August 2016, she was informed she was ‘at risk’ of redundancy. On the same day Ms Pease received, completed and returned her redeployment preference form. 

On 22 August 2016, she had an individual consultation where alternative posts were considered but deemed unsuitable. The Trust believed a suitable alternative had been offered to her on 29 September 2016; however she was certain this was not the case. The email with the role had been sent to her work email, but as she was on maternity leave she was unable to access it. Ms Pease did not get notice of the email for several days and as such her employment terminated on 2 October 2016.

She submitted a claim for unfair dismissal and discrimination on the grounds of maternity. She was successful in her claims, with the Employment Tribunal (ET) finding that she was unfavourably treated because she had exercised her right to take maternity leave.  The Trust appealed the decision in relation to Ms Pease’s discrimination claim.

The Employment Appeal Tribunal (EAT) agreed that the use of Ms Pease’s work email address to inform her of job opportunities amounted to unfavourable treatment, but that this in itself was not discriminatory. The EAT held that the ET had not properly directed itself on causation. The ET had applied the wrong test to the actions of the Trust, and should have asked itself the “reason why” question in relation to why the unfavourable treatment took place.

The EAT’s Judge Shanks held that the finding of discrimination could not stand and that the claim should be remitted to the same Tribunal in order to hear further evidence, make further findings of fact and then consider the case having properly directed itself in relation to causation.

This case highlights the importance of keeping any staff on maternity leave fully involved in any redundancy process. It will be important to agree how to contact any member of staff who is on maternity leave to ensure they are kept updated on the process. As this case has been remitted to the original Tribunal who made the decision it will be interesting to see the decision they make when applying a different test.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.