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Knowledge and pregnancy discrimination

The Employment Appeal Tribunal in the case of Really Easy Car Credit Ltd v Thompson has considered whether an employer needs to have knowledge of pregnancy when a decision to dismiss is made to be liable for automatic unfair dismissal and discrimination.

Background

On 3 August 2016, Really Easy Car Credit Ltd (“the Company”) made a decision to dismiss the Claimant during her probationary period because she did not fit in with their work ethic and because of her perceived emotional volatility. This decision was not immediately communicated to the Claimant and on 4 August, the Claimant informed the Company that she was pregnant.

It was not until 5 August, that the Company gave the Claimant the dismissal letter (dated 3 August). She claimed that the letter had been backdated and that the decision to dismiss her had been made after the Company found out she was pregnant.

The Claimant brought claims for automatic unfair dismissal and pregnancy discrimination.

Decision

The Employment Tribunal held that the decision to dismiss had been made on 3 August and that it was unrelated to the Claimant’s pregnancy. However, the tribunal went on to say that when the Company learnt of the pregnancy before notifying her of the decision, it must have been obvious that her conduct and emotional volatility were pregnancy related. This was sufficient to reverse the burden of proof. The tribunal held that the Company failed to establish that the dismissal was not related to the Claimant’s pregnancy.

The Employment Appeal Tribunal (“EAT”) allowed the Company’s appeal.

It could not be said that the decision to dismiss the Claimant was because of her pregnancy or that the pregnancy was the principal reason for dismissal because the Company had no knowledge of the pregnancy at the time that decision was made. Furthermore, the EAT held that there was no obligation on the Company to revisit its decision to dismiss the Claimant after it found out about her pregnancy.

The case was remitted to a different tribunal to consider.

Comment

Employers must not dismiss employees because of pregnancy or reasons related to pregnancy. To do so can result in costly automatic unfair dismissal and pregnancy discrimination claims. However, as this case demonstrates, for such claims to succeed, an employer must have knowledge of the pregnancy at the time any decision was taken in respect of the employee. Subsequent knowledge will not necessarily oblige an employer to revisit a decision but legal advice should be sought in such circumstances.

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