The EAT decision in Really Easy Car Credit Ltd v. Thompson [EAT/0197/17] raises some interesting points about date of knowledge, reasons which may be connected with being pregnant, and timing.
T was within her 3 month probationary period when she was summarily dismissed due to her “emotional volatility” and “failure to fit in with the Respondent’s work ethic”. It was accepted by the Tribunal that during T’s probationary period her performance had only been average, and the company had raised issues with her about too many cigarette breaks, interaction with another colleague and the wearing of her uniform.

In the week commencing 25 July 2016 T discovered she was pregnant and she began to suffer some discomfort.

On 2 August T was meant to work but instead she texted the company saying she needed to attend hospital as she was experiencing pain. She took a day off sick. One of the directors reassured her by saying she shouldn't “worry about work. It will still be here when you are sorted”.

One of the other directors, however, felt differently. He said T should have gone to hospital earlier, and not waited until she was due back at work. He wanted to terminate her employment as a result, however the other two directors talked him out of it.

On 3 August an incident occurred between T and a customer which led her being spoken to by another manager. T became upset and eventually went home.
Later that day the directors met again and concluded T should be dismissed. As a result, a letter of dismissal was drafted the same day but it was decided to hang on to it until T next attended work.

On 4 August a manager spoke to T at home and she agreed to attend work the next day – 5 August. She then told the manager she was pregnant. This was passed back up the line and advice was taken from the company’s lawyers. On 5 August T attended work and was dismissed for the reasons stated above.
Tribunal Proceedings
T brought claims for both unfair dismissal and pregnancy discrimination, contending that the decision to terminate her employment was only made once the company had learnt of her being pregnant.

The Tribunal accepted the decision to terminate T’s employment had been taken for the reasons described above. It found that one director believed T should have gone to hospital in her own time, and the other directors were more focussed on T’s emotional outburst. It also found that T’s average performance was not the primary reason for her dismissal.

Despite this, the Tribunal went on to find that, when the company discovered T was pregnant on 4 August, it must have become obvious that both T’s attendance at hospital, and her emotional state were both “pregnancy related” matters.

The company had therefore failed to satisfy the Tribunal that T’s dismissal wasn't related to her pregnancy, with the result her claims succeeded.

Employment Appeal Tribunal.

The EAT seemed to be a bit bemused by the Tribunal’s reasonings, such that it led the EAT to suggest the Tribunal must have found the company liable by "omission". In other words, the Tribunal had decided that, on finding out T was pregnant before it actually dismissed her on 5 August, the company should have taken positive steps and reversed its decision.

The EAT emphasised this wasn’t a case whereby the company would be liable if it had treated T unfavourably because of something arising from her pregnancy i.e. analogous to a section 15 EQA claim in a disability discrimination case. Instead, the test was whether T’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 company to know of T’s pregnancy when it made its decision.
Although this case is highly fact sensitive it confirms that in unfair dismissal cases what is crucial is an employer must lack the requisite knowledge that an employee is pregnant at the time the decision to dismiss is made. Furthermore, the decision has to be based upon the fact of knowing an employee was pregnant, not for some ancillary pregnancy related reason.

This remains a bit of a fraught area, however, and businesses should remember that under s18(2) EQA an employer can still discriminate if an employee is treated less favourably because of the pregnancy, or because of an illness suffered as a result of being pregnant. On the facts s18(2) didn’t come into play here.

There is a residual question of whether the company, having found out T was pregnant before it communicated its decision, should have considered changing it's mind. The answer is a qualified “yes” in the sense that this is only a question which goes to the "reasonableness" of the decision, not the decision itself. In this case T had limited service so it wasn’t relevant, however it could be for longer serving employees.
CONTACT: Christopher Filor
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This publication is not intended to provide legal or other professional advice and should not be relied upon as such. Readers should take legal advice before applying the information contained in this briefing.
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