Can a pregnant employee be fairly dismissed if their employer does not know they are pregnant?
Ms Thompson was employed as a telesales operative by Really Easy Car Credit Limited (“RECCL”) who sold car credit for the purchase of second hand cars.
Ms Thompson had been employed just over a month, and was still in her probationary period, when she found out she was pregnant. She experienced pains and was admitted to hospital but did not tell her employer the reason she was admitted to hospital. RECCL therefore thought she should have arranged the hospital appointment in her own time. She also had an altercation with a customer and when picked up on this by RECCL she shot off to the toilet in tears and was sent home.
On 3 August 2016 RECCL decided to dismiss her because of her emotional volatility, performance and because she did not fit in with their work ethic. On 4 August 2016 Ms Thompson told RECCL that she was pregnant. When she returned to work on 5 August 2016 she was given a dismissal letter dated 3 August 2016.
Ms Thompson brought claims in the Employment Tribunal for pregnancy discrimination under s18 of the Equality Act 2010 and for automatic unfair dismissal by reason of pregnancy under s99 of the Employment Rights Act 1996. She asserted that RECCL lied about the date the decision was made to give the impression the decision was made before she told them of her pregnancy.
The Employment Tribunal
The Employment Tribunal found as fact that the decision to dismiss Ms Thompson was made on 3 August 2016 and that RECCL was not notified of the pregnancy until 4 August 2016. The Tribunal also accepted that the reason for Ms Thompson’s dismissal was her emotional volatility and failure to fit in with RECCL’s work ethic. However despite this the Tribunal found that the dismissal was automatically unfair and an act of pregnancy discrimination.
The Employment Tribunal found that when RECCL became aware of the pregnancy it was obvious that the issues that had triggered the dismissal were pregnancy related. It held that this was sufficient to reverse the burden of proof and that RECCL had not established that the dismissal was completely unconnected to Ms Thompson’s pregnancy.
The EAT rejected the ET’s reasoning. There is no parallel in pregnancy discrimination to the terms of section 15 Equality Act 2010 relating to unfavourable treatment “because of something arising from” a disability. Either an employer knows or believes an employee to be pregnant at the time a decision to dismiss is made or they don’t.
The decision to dismiss couldn’t have been because of the pregnancy when RECCL knew nothing about it at that time the decision was made.
The EAT then considered the question whether if the decision to dismiss Ms Thompson was made without knowing she was pregnant whether RECCL was obliged to reconsider its decision in light of that knowledge. The EAT held that the law “imposes no positive obligation on the [employer] to then revisit its decision after it learned of her pregnancy”.
The EAT remitted the case for fresh consideration to a different tribunal as it was unclear if RECCL had made a further decision after learning of the pregnancy.
What does this mean for you or your business?
- It is potentially better not to revisit a decision made without knowledge of pregnancy as a decision made pre-awareness shouldn’t be tainted by later knowledge. However a subsequent decision may be.
- This employee lacked the service to claim unfair dismissal. If she had had the service to claim unfair dismissal then her employer would have been well advised once the pregnancy unexpectedly came to light to take it into account as mitigation in any dismissal proceedings.
- There is no reason why an employer cannot dismiss an employee who is pregnant, provided that the dismissal is for a lawful reason and entirely unconnected to her pregnancy, and the employer has followed a fair procedure.
- If an employer dismisses an employee who is pregnant or on maternity leave, it must provide her with a written statement of the reasons for her dismissal. This applies irrespective of the employee’s length of service and without her having to request the written statement.
What do you need to be doing now?
Make sure that appropriate evidence is kept of when and why decisions are made. In this case RECCL were not liable for pregnancy related dismissal because they were able to prove that the key dismissal decision was made on 3 August 2016. It's advisable not to rely on oral evidence alone.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.