Pregnancy Discrimination: Date of Dismissal
In the recent case of Really Easy Car Credit Ltd v Thompson the Employment Appeal Tribunal (EAT) considered whether an employer is required to have knowledge of pregnancy to be liable for automatic unfair dismissal and discrimination on the grounds of pregnancy.
A dismissal of an employee will be automatically unfair under the Employment Rights Act 1996 (ERA) if the reason, or principal reason, for the dismissal is connected to the employee’s pregnancy. In order to be liable, an employer must know, or believe, that the employee is pregnant and the Tribunal will carry out an analysis of the facts available to the employer when they decided to dismiss.
Further, if, during the “protected period”, an employer treats a pregnant woman unfavourably because she is pregnant this will also constitute unlawful discrimination. The protected period runs from the start of a woman’s pregnancy with the duration depending on her statutory maternity leave entitlements. Again, in order for an employer to discriminate against an employee on the grounds of pregnancy during the protected period, the employer must have knowledge of the pregnancy.
This case involved a woman who was dismissed during her pregnancy on her probationary period. Thompson worked as a telesales operator for Really Easy Car Credit, a company selling second-hand cars, when she was dismissed due to her emotional volatility and because she did not fit with the company’s work ethic. The decision to dismiss Thompson during her probationary period was made on 3 August 2016. The next day, on 4 August 2016, Thompson told her employer that she was pregnant. On 5 August 2016, Thompson was handed a dismissal letter, dated 3 August 2016.
Thompson brought a claim in the Employment Tribunal (ET) against her former employers arguing that her dismissal letter had been falsely backdated and that the decision to dismiss her had been made after her pregnancy announcement. The ET rejected this account and accepted that a dismissal decision had been made before her employer knew of her pregnancy, and was unrelated. However, they confirmed that once Really Easy Car Credit had learnt of the pregnancy it should have been obvious that Thompson’s emotional volatility was pregnancy-related and that the issues that had led to her dismissal were therefore related to her pregnancy. For this reason, the ET found that the dismissal was automatically unfair and an act of unlawful discrimination. Really Easy Car Credit appealed.
The EAT rejected the earlier Tribunal’s ruling. They confirmed that when considering the case, the Tribunal should consider (i) whether Thompson’s pregnancy had been the reason for her dismissal and (ii) whether the decision to dismiss had been a discriminatory one because of her pregnancy. Both points required Really Easy Car Credit to have had knowledge of, or belief in, Thompson’s pregnancy.
On the facts, the EAT confirmed that there was nothing to suggest that the decision to dismiss was because of Thompson’s pregnancy, as at the time of the decision this was not known and there was no suggestion that the decision was subsequently revisited. It was noted that the initial Tribunal had appeared to have found Really Easy Car Credit liable because they had not taken positive steps to revisit their decision once they learnt of Thompson’s pregnancy. The EAT confirmed that there is no obligation on an employer to revisit a decision in such circumstances.
The case was remitted back to the Tribunal to determine what happened once Thompson announced her pregnancy and, ultimately, whether her dismissal was because of her pregnancy and whether this was the reason for her dismissal.
In the case of a dismissal it is important that any discussions or meetings in relation to the decision and, in particular, the reasons for it, are well documented. In this case, a problem arose with the timing of the dismissal letter in that it was given to the Claimant following her pregnancy announcement. Importantly, however, this should not matter as long as the dismissal was not related to the pregnancy and the reason for the dismissal is unconnected to the pregnancy.