The question this week is:

Does sending an important email to an email account that staff on maternity leave don’t access amount to an act of unfavourable treatment?

Ms Jackson, was one of 18 Claimants who was made redundant by South West Yorkshire NHS, the Respondent, whilst off on maternity leave. As the Claimants were on maternity leave, none of them had easy access to their work emails and were not able to check them regularly.

The Respondent emailed all the Claimants to inform them of redeployment opportunities. However, the email only went to their work email addresses which they could not readily access. The Claimants did not hear about the jobs for several days.

However, they were able to apply for redeployment after hearing about it through other means. In any event, the Claimants were made redundant and initiated claims for unfair dismissal and unfavourable treatment because of maternity leave.

The ET allowed the unfavourable treatment claims. It held that because the Claimants did not have access to their emails, they had not been adequately communicated with during the redundancy process.

The ET did not state the cause of the unfavourable treatment and the Respondent appealed. The EAT held that whilst the Claimants would have had better email access had they not been on maternity leave, it was unclear whether the unfavourable treatment occurred because of this. The case was remitted back to ET.

The takeaway point:

Sending an important communication via a work email to staff on maternity leave could be unfavourable treatment. However, the reason why the staff on leave did not have access is important. Had they been locked out of remote access whilst on maternity leave it almost certainly would be unfavourable treatment.

The case becomes more borderline if they simply had not checked their email because they weren’t working. However, a common-sense approach might have been to send the communication via letter as well.

Many staff who are off on leave, maternity or otherwise, are out of habit on checking work emails, sending important communications via post too would eliminate risk. What the ET also did not comment on is how the notice of being at risk of redundancy was sent. If that was sent by post and the redeployment by email, the case might tip in favour of the employees.