Maternity rights – innaccessible work email 18 March 2019
Can it be unfavourable treatment under the Equality Act 2010 to send a woman on maternity leave an important email at an email address that she cannot access?
Yes, held the EAT in SW Yorkshire Partnership NHS Foundation Trust v Jackson. However, a tribunal needs to consider the reason why the email was sent in that way.
Whilst on maternity leave, the Claimant was one of several staff put at risk of redundancy. The HR department sent to her (inaccessible) work email details of redeployment opportunities. She did not find out about them for several days, and although this caused no substantial harm, it was a legitimate concern, and her a claim for unfavourable treatment under s18(4) Equality Act succeeded; the tribunal upheld the claim as the Claimant did not get the email 'because' she was on maternity leave. The EAT held that the tribunal had erred in applying the test for causation. Although the unfavourable treatment would not have happened 'but for' taking maternity leave, the tribunal 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.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
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Employment Appeal Tribunal on Worker Status 14 March 2019
Can an individual who is paid a quarterly 'exclusivity' payment be an employee?
Yes, held the EAT in Exmoor Ales Ltd & Another v Herriot.
The Claimant provided accountancy services for the brewery for 27 years. She submitted invoices in the name of her partnership (with her husband). The brewery then paid her a quarterly payment of £1,000 from 2011 onwards. She brought a number of claims including unfair dismissal and discrimination when the working relationship ended. The brewery denied that she was a worker or employee. The tribunal held that the Claimant was an independent contractor until 2011 when she became an employee. It preferred her evidence that the quarterly payment required her to work exclusively for the brewery, and that she had no right to appoint a substitute in her absence. The brewery appealed that decision on the basis that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. The EAT rejected the appeal. It held that Tribunal had been aware of the tax arrangements and the other factors but these had been overridden by other factors including mutuality of obligation, control and substitution. These factors, and the exclusivity obligation, were decisively in the Claimant's favour.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
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The Chartered Institute of Payroll Professionals
Payroll: need to know
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