To be liable for automatic unfair dismissal or discrimination on the grounds of pregnancy, the employer must know, or believe, that the employee was pregnant when it decided to dismiss.
Miss Thompson was employed by Really Easy Car Credit Limited (Easy Car). During her three month probationary period, there were concerns about her performance and conduct – for example, she had been making fewer calls than her colleagues and taking too many cigarette breaks. During the week commencing 25 July, she found out that she was pregnant, and over the weekend, she experienced pains. She was due to go into work on Tuesday 2 August, but she texted early that morning to say that she needed to go to the hospital as she had been experiencing pain since the Saturday and needed to take the day off sick. Although Easy Car was unaware of this at the time, she in fact went to the hospital for a scan to find out whether she had miscarried. Easy Car considered dismissing her then, but decided not to do so. She returned to work on 3 August, and an incident occurred between her and a customer, which led to her being spoken to by a manager.
That afternoon (3 August), Easy Car’s directors and owners decided to dismiss Miss Thompson. They said that they were tired of her “emotional volatility”, her conduct was not good enough, and her performance was “average at best”. A letter was drafted, but not posted to her, as they felt the letter should be given to her in a meeting when she was next in work.
The next day, 4 August, Miss Thompson told a manager on the telephone that she was pregnant. Easy Car went ahead with the dismissal the following day, on 5 August.
Miss Thompson brought claims against Easy Car for unfair dismissal and pregnancy discrimination. She alleged the reason given for her dismissal was false, the real reason being the fact that she was pregnant, something Easy Car had found out the day before she was dismissed. She claimed that the dismissal letter had been falsely backdated and that Easy Car had not made the decision to terminate before learning of her pregnancy.
The tribunal did not accept Miss Thompson’s case, and it was satisfied that the Easy Car took the decision to dismiss her on 3 August 2016, but did not communicate that to her until 5 August. It also accepted that the reason for the dismissal on 3 August was indeed her emotional volatility and her failure to fit in with Easy Car’s work ethic; the events of 2 and 3 August 2016 had been the last straw. However, the tribunal considered that, when Miss Thompson told them on 4 August that she was pregnant, it must then have been obvious that her attendance at hospital and her emotional state were both matters that were "pregnancy related ". Easy Car had nonetheless gone ahead with the dismissal. On that basis, the tribunal was satisfied that she had proved facts sufficient to reverse the burden of proof, meaning that Easy Car had to show that the dismissal was in no sense whatsoever related to Miss Thompson’s pregnancy. The tribunal did not consider that it had done so, and concluded that she had been automatically unfairly dismissed and discriminated against on the grounds of pregnancy.
Easy Car appealed, and the EAT allowed the appeal. The EAT said that, for the dismissal to be automatically unfair or pregnancy related discrimination, Easy Car would have to know, or to believe, that Miss Thompson was pregnant when it took the decision. According to the tribunal’s findings of fact, on 3 August, when the decision was made, it did not know about her pregnancy and (after Easy Car had found out about her pregnancy) the tribunal had not made a finding that there was any further decision: the manager went ahead and communicated the dismissal as had been decided on 3 August. In contrast, if the tribunal had considered that, in fact, Easy Car had gone on to take a further decision in light of its knowledge of the pregnancy (for example, that it should definitely proceed to dismiss because of her condition), the tribunal would have recorded this as a finding, and it had not. On the findings of fact, there was no further decision after 3 August and that decision was untainted by any knowledge or belief in Miss Thompson’s pregnancy.
The EAT said that the tribunal appeared to have considered that Easy Car should have taken positive steps to revisit its decision after it learnt of Miss Thompson’s pregnancy. The EAT confirmed that there was no legal obligation for it to do so. The EAT also pointed out that it was not at all certain that it would be reasonable to assume that an emotional outburst must be related to a pregnancy.
The EAT remitted the case back to a differently constituted tribunal to expressly determine what, if anything, occurred on 4 and 5 August, and (if anything had occurred) consequently whether dismissal was because of Miss Thompson’s pregnancy and whether that was the reason, or principal reason, for the dismissal as at 5 August.
What does this mean for employers?
This case does not create or alter any legal principle. However, it is reassuring to have confirmation that employers who do not know about a pregnancy cannot be found to have discriminated on the grounds of the pregnancy.
This case also confirms that there is no positive obligation on an employer to reconsider a decision that has been made if it subsequently finds out that the employee is pregnant. Indeed, if it does so and then makes a positive decision to dismiss because of the pregnancy, it will be liable for automatic unfair dismissal and pregnancy related discrimination.