This difficult question was considered in the case of Really Easy Car Credit Limited v Miss A Thompson when the employer decided to dismiss their employee for conduct and performance reasons but was then told by the employee that she was pregnant.
The law affords special protection to employees who are pregnant or on maternity leave. Under section 99 of the Employment Rights Act 1996 it is automatically unfair to dismiss an employee by reason of pregnancy, childbirth or maternity leave.
It is also pregnancy discrimination to treat an employee unfavourably because of her pregnancy or because of a pregnancy related illness – section 18 of the Equality Act 2010 (EqA). The burden of proof is on the employee, to persuade the Tribunal that there are facts from which it can conclude, absent any other explanation, that the employer has treated the employee unfavourably because of her pregnancy. If the employee manages to do this, the Tribunal then has to consider the employer’s explanation and decide whether it has demonstrated that its decision was wholly unrelated to the employee’s pregnancy.
Miss Thompson started working for Really Easy Car Credit Ltd (RECC) as a telesales operative on 20th June 2016. She was subject to a 3-month probationary period. On 3rd August 2017, the directors of RECC decided to terminate her employment because of concerns about her conduct, performance and, they said, “emotional volatility”. In particular, Miss Thompson missed work to attend a hospital appointment (related to her pregnancy) and, on 2nd August 2017, she had an “emotional outburst” at work. A letter was prepared but it was decided to arrange a meeting with Miss Thompson to inform her of the decision and give her the letter. The next day, when arranging this meeting, Miss Thompson told her employer that she was pregnant. The meeting still went ahead on 5th August 2017 and Miss Thompson was told about the decision to end her employment. She was also told the decision had nothing to do with the fact she was pregnant.
Miss Thompson subsequently brought claims against RECC for automatic unfair dismissal and pregnancy discrimination arguing that the real reason for her dismissal was her pregnancy and that the reasons given by RECC were false.
Miss Thompson won her claims for unfair dismissal and pregnancy discrimination in the Employment Tribunal. Although the Tribunal accepted that RECC decided to end her employment on 3rd August 2017 before knowing about her pregnancy, once RECC knew Miss Thompson was pregnant, the Tribunal said it must have been “obvious” that her attendance at hospital and her emotional state were “pregnancy related”. Despite this, they still went ahead with the dismissal. On that basis, the Tribunal was satisfied that Miss Thompson had provided sufficient facts to shift the burden of proof and that it fell to RECC to prove that her dismissal was unrelated to her pregnancy.
The Tribunal held that RECC failed to demonstrate this and accordingly found in Miss Thompson’s favour.
RECC appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal held that the Employment Tribunal did not use the correct legal test in deciding that Miss Thompson had established a prima facie case of discrimination.
The Judge noted that the Tribunal was satisfied that RECC had decided to dismiss Miss Thompson for reasons unrelated to her pregnancy on 3rd August 2017. However, despite this, the Tribunal had gone on to find that because RECC did not revisit the decision to dismiss once it knew of her pregnancy, this was enough to conclude that RECC had potentially treated her unfavourably because of her pregnancy, therefore shifting the burden of proof to RECC to show that the dismissal had nothing whatsoever to do with her pregnancy. The Appeal Tribunal said this was the wrong approach.
The correct legal test was for the Tribunal to ask whether the pregnancy itself was the real reason for Miss Thompson’s dismissal or whether the decision to dismiss was because of her pregnancy.
This meant that RECC had to have known of Miss Thompson’s pregnancy when it took the decision to dismiss her. It did not impose a positive obligation on RECC to revisit its decision after it learned of her pregnancy.
The Appeal Tribunal found the Employment Tribunal had not made sufficient findings of fact to move the burden of proof to RECC to prove the dismissal had nothing whatsoever to do with Miss Thompson’s pregnancy and, in any event, the Tribunal had not engaged fully with RECC’s explanation for the treatment.
The case was sent to a different Tribunal to find out whether RECC re-examined its decision after learning of Miss Thompson’s pregnancy.
Points to note
The timing of the decision in this case was crucial. The employee did not tell her employer the reason for her hospital appointment or about her pregnancy until after they decided to dismiss her. If she told her employer beforehand and her employer went ahead and dismissed her, this would almost certainly be an automatic unfair dismissal and pregnancy discrimination.
Action to take
1. It is unlawful to dismiss an employee because she is pregnant or for a pregnancy related reason. However, knowledge is key and if you do not know or believe that an employee is pregnant when you make any decision, then a complaint of pregnancy discrimination is unlikely to succeed.
2. If you subsequently have knowledge of an employee’s pregnancy, it is not a legal requirement for you to revisit your decision, but you should seek legal advice before taking any action.
3. Always enquire about reasons for absence on an employee’s return to work so that you do not end up making decisions that are potentially discriminatory.