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Rebecca Driffield looks at a recent Employment Appeal Tribunal case on this issue and offers some practical advice.

Recently the Government issued a consultation proposing to extend the redundancy protection in place for new parents. This followed from a 2016 report from the Equality and Human Rights Commission which demonstrated that pregnant women and new parents continue to feel forced out of work and that pregnancy and maternity discrimination remains prevalent in the workplace.

A perennial challenge for employers is maintaining reasonable contact with employees on maternity leave. Too little, too much, or any perception that the employee is being pressurised, can lead to employees feeling aggrieved or even to claiming discrimination.

The legal framework

The law currently states that a woman cannot be treated unfavourably during the ‘protected period’ because of:

  • Pregnancy;
  • An illness suffered as a result of pregnancy;
  • Compulsory maternity leave; or
  • Because she is exercising or seeking to exercise the right to ordinary or additional maternity leave.

The ‘protected period’ usually starts when the woman becomes pregnant and ends when she returns to work after the pregnancy.

The relevant Regulations do refer to ‘reasonable contact’ from time to time during an employee’s maternity leave, which (unsurprisingly) does not bring maternity leave to an end. This contact can be used to discuss arrangements for the employee’s return to work or to keep the employee informed of any important developments at work.

A recent case about email

One question we are often asked by employers with employees on maternity leave is what constitutes ‘reasonable contact’ with such employees? This will depend upon individual circumstances, however the Employment Appeal Tribunal recently looked at the sending of important emails to an inaccessible work email address in the case of SW Yorkshire Partnership NHS Foundation Trust v Jackson.

What happened?

Mrs Pease was on maternity leave whilst a redundancy exercise was being carried out. An important email was sent to her work email address requiring her to complete a redeployment form and return it to HR as soon as possible so that a process of ‘matching’ could commence, based on employees’ preferences.

Mrs Pease did not have access to her work emails whilst on maternity leave and, as such, she was not on notice of the email and did not receive or fill in the form for a period of nine days after the email was sent. The question for the Employment Tribunal and the EAT was whether this amounted to discrimination under the Equality Act 2010.

The decision

The Tribunal in the first instance found that the email amounted to unfavourable treatment because Mrs Pease had exercised her right to maternity leave. They found that but for the maternity leave Mrs Pease would have received the email at the same time as her colleagues and could have taken steps to make her preferences known. The Employment Tribunal was satisfied that Mrs Pease would have suffered some detriment in not being able to submit her preferences for the matching process as early as her peers.

This point was the subject of the appeal by the NHS Trust, on the basis that they had not considered Mrs Pease’s maternity leave when they sent the email and, as such, maternity could not be the reason why she had been treated unfavourably.

On appeal, the Employment Appeal Tribunal found that the actions of the Trust in sending the email to an inaccessible work email address could amount to discrimination but that the Tribunal would need to hear evidence on the reasons why the email was sent as it was. The EAT did highlight the Equality and Human Rights Commission code of practice on employment, which says that failure to consult a woman on maternity leave about changes to her work or about possible redundancy, is an example of unlawful discrimination. However, the EAT remitted this case back to Leeds Employment Tribunal for a further decision on the matter. Whilst giving no definitive answer and showing that all cases will be judged on their merits, it does illustrate the legal risks which arise if employers do not ensure that those on maternity/parental leave are kept fully informed of important goings-on in the workplace during their absence.

Keeping in touch

It is worth remembering that a woman is able to work for up to 10 days during maternity leave, without bringing the maternity leave to an end (keeping in touch days). However, both the employer and employee need to first agree that a keeping in touch day will take place and, secondly, the type of work that the employee will undertake. For example, this can include attending a team meeting or a training session. Keeping in touch days are in practice separate to reasonable contact, but may form part of keeping the employee informed and engaged with the workplace.

Best practice

For employers, good practice would be to discuss with the employee, before the maternity or parental leave commences, how much contact they would like and what method of communication they would prefer, for example email, telephone or post. Employees should remain included on communications relating to news bulletins, vacancies, social events and training courses for the duration of the leave, unless the employee specifically asks not to be. Employees on maternity/parental leave should always be informed of any promotion opportunities that may arise. The decision in Jackson suggests that it would be helpful to obtain a personal email address for important communications, especially where the employee is unlikely to have access to their work emails during the period of leave.

For further guidance on communicating with employees on maternity leave, contact our employment solicitors.