16 March 2018

Managing pregnant employees can be tricky given the protection that pregnant workers enjoy. What happens where the employer decides to dismiss an employee and then almost immediately discovers that the employee is pregnant – is there an obligation to revisit the decision?

These were the issues the Employment Tribunal had to consider in Really Easy Car Credit v Thompson. In this case the Claimant’s employment was subject to a successful completion of a three-month probationary period, during which the notice period was one week on both sides. The Respondent considered the Claimant’s performance at work to be ‘average at best’. Certain conduct issues were raised with her.

The facts

During her probationary period, the Claimant discovered she was pregnant. She then experienced pains and had to go to hospital. The Respondent was unaware of the Claimant’s pregnancy. The Claimant returned to work. An incident then occurred involving the Claimant and a customer. A discussion took place with the Claimant in connection with the incident. The Claimant was upset over the words used towards her although she acknowledged that she may have misunderstood what was said as she was still in an emotional state following her hospital visit.

That afternoon, the Respondent decided that the Claimant should be dismissed. The Respondent’s position was that it was tired of the Claimant’s ‘emotional volatility’, conduct and performance. A letter was drafted that day confirming the decision that had been reached. It was decided not to post the letter straight away. Instead the Claimant was asked when she could next come into work to allow a meeting to take place when she would be given the letter.

When the Claimant was telephoned to arrange the meeting (which was to take place the next day), the Claimant advised the Respondent of her pregnancy. At the meeting, the next day, the Claimant was given the letter and she was told about the reasons for her dismissal. The Respondent emphasised that her dismissal was entirely unconnected to her pregnancy. The letter stated that the Claimant was being dismissed because she had not met the satisfactory level of performance needed.

The Claimant raised claims for unfair dismissal and pregnancy discrimination. She alleged the real reason for her dismissal was the disclosure of her pregnancy the previous day.

Tribunal’s decision

The Employment Tribunal was satisfied that the decision to dismiss was taken prior to the Respondent knowing about the Claimant’s pregnancy and that the reason for dismissal was indeed her emotional volatility and failure to fit in with the Respondent’s work ethic. Nonetheless, the Employment Tribunal considered that once the Claimant had disclosed her pregnancy, the Respondent would then have known that the Claimant’s emotional state and behaviour were ‘pregnancy related’.

The Employment Tribunal was satisfied that the dismissal was therefore pregnancy related (and automatically unfair) and an act of unlawful pregnancy discrimination.

The appeal

The Respondent’s appeal to the Employment Appeal Tribunal was successful. The real question was what was the operative reason (or principal reason) for dismissal. The Employment Tribunal had accepted that when the Respondent decided to dismiss the Claimant, it did not know she was pregnant. Nothing had changed when the Respondent learned of the Claimant’s pregnancy. There was no obligation requiring the Respondent to take positive steps to revisit its decision.

The correct approach in law was to ask whether the Claimant’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. That required the Respondent to know of the Claimant’s pregnancy when it took the relevant decision. It imposed no positive obligation on the Respondent to then revisit its decision after it learned of her pregnancy

The appeal was therefore allowed and the case was remitted to a different Tribunal.

In short

This case provides a useful reminder that in unfair dismissal/discrimination cases the question is what was the reason why the employer dismissed the employee. Nevertheless, employers should take care to ensure that proper consideration is given to pregnant employees, including in terms of risk assessment and day to day management. Pregnancy related claims can be complex and expensive given the absence of any cap on the amount of compensation that can be awarded in discrimination cases.

Careful consideration of the facts and risks by working with your expert BTO employment lawyer is a must.

The full judgment can be found here.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.