Dismissal of pregnant employee and what the employer knows

Really Easy Car Credit Ltd v Thompson

An employer was not obliged to revisit its decision to dismiss when it became aware that the employee was pregnant.

Background

Ms Thompson had worked in telesales for just over a month and was still within her probationary period. Unknown to her employer she was pregnant and attended hospital during work time on 2 August, thinking she had miscarried. This had upset one particular director who wanted to terminate her employment then but was talked out of it. During her employment there had been problems with too many smoking breaks, wearing the uniform and interaction with her colleagues, but the final straw came on 3 August when an incident involving a customer took place, and HR had to get involved. Her employer decided to dismiss her because of her ‘emotional volatility’ and ‘failure to fit in with [its] work ethic’. The next day Ms Thompson told her employer that she was pregnant, but they went ahead with a meeting on 5 August at which she was dismissed and given a dismissal letter dated 3 August. She brought a tribunal claim alleging that the letter had been falsely backdated and that the decision to dismiss her had not been taken until after she’d informed her employer of her pregnancy.

The tribunal held the decision about terminating Ms Thompson’s employment had been made on 3 August and had not been related to her pregnancy; no other decisions were made. However, they went on to say that delaying the communication of her dismissal meant the employer was obliged to review its decision in the light of its knowledge of her pregnancy, which ‘clearly had a bearing on the behaviour that the employer considered was the last straw’ and ‘it must have been obvious … that [Ms Thompson’s] attendance at hospital and her emotional state were pregnancy related’. She had therefore done enough to reverse the burden of proof and her employer had failed to show that the dismissal was in no sense whatsoever related to her pregnancy. The tribunal upheld her complaints of pregnancy discrimination and automatic unfair dismissal by reason of pregnancy. The employer appealed, arguing that the tribunal had applied the wrong legal test.

EAT decision

The EAT allowed the appeal. On the tribunal’s findings of fact, there had been no further decision made by the employer after 3 August which reversed the burden of proof, and the tribunal had found that that decision was untainted by any knowledge or belief in Ms Thompson’s pregnancy.

The tribunal had effectively found the employer liable by omission and considered that it should have taken positive steps to revisit its decision after it learnt of Ms Thompson’s pregnancy. Even if it had been reasonable for the tribunal to assume that once she had told her employer that she was pregnant it must have been obvious that her emotional state and other conduct were pregnancy related, that was not the correct question. The correct test was whether Ms Thompson’s pregnancy itself had been the reason or principal reason for her dismissal or whether the decision to dismiss had been because of her pregnancy. This required the employer to know of the pregnancy when it took the relevant decision. Nothing in the legislation creates a liability on an employer if it has treated a pregnant employee unfavourably because of something arising from her pregnancy when there is no knowledge of the pregnancy.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0197_17_0301.html

Comment

The critical issue for a tribunal is to examine the reason for the dismissal. In most cases if a decision to dismiss is made before an employee notifies her employer of her pregnancy then it may be difficult for the employee to show she was dismissed because of her pregnancy. In cases such as this, where the date of the decision is in issue, evidence made at the time of the decision will be crucial for employers. This is different from cases of disability where an employer might well be obliged to reconsider their decision if the reason for the dismissal is something arising from the employee’s disability.