Employer not obliged to revisit decision to dismiss after notification of pregnancy

In Really Easy Car Credit Ltd v Thompson the Employment Appeal Tribunal (“EAT”) considered whether an employer, having decided to dismiss an employee, is required to revisit their decision if, prior to communicating the decision, the employer is notified of the employee’s pregnancy. The EAT confirmed that there is no obligation to revisit the decision. The EAT also confirmed that an employer can only be liable for automatic unfair dismissal or discrimination on pregnancy grounds where they believe that the employee is pregnant or have actual knowledge of the pregnancy when the decision to dismiss is made.

Facts

Miss Thompson was employed by Really Easy Car Credit Limited (“Easy Car”). During her probationary period, on 3 August, Easy Car decided to dismiss her for poor performance, work ethic and emotional volatility. They did not, however, immediately inform her of this decision and on the following day Miss Thompson informed Easy Car that she was pregnant. Easy Car handed Miss Thompson her dismissal letter on 5 August. Miss Thompson brought a claim for automatic unfair dismissal and discrimination on pregnancy grounds.

Deciding in favour of Miss Thompson, the Employment Tribunal found that the decision to dismiss had been made on 3 August, but that Easy Car was under an obligation to revisit its decision once it knew that the claimant was pregnant.  The Tribunal said that Miss Thompson’s emotional state was clearly related to her pregnancy and that this should have been obvious to Easy Car on being told that Miss Thompson was pregnant. Easy Car appealed the decision.

Decision

The Employment Appeal Tribunal allowed the appeal. The Employment Tribunal had been incorrect to suggest that Easy Car had an obligation to revisit its decision once it was aware that Miss Thompson was pregnant when the law in fact prescribed no such obligation.

The tests to be applied were:

  1. Whether the pregnancy had been the reason or principal reason for the dismissal (in the case of the automatic unfair dismissal claim on pregnancy grounds)
  2. Whether the decision to dismiss had been because of the pregnancy (in the case of the pregnancy discrimination claim).

At the time of making the decision to dismiss Miss Thompson on 3 August, Easy Car had no knowledge of the pregnancy and therefore that decision was untainted and did not fall within the tests above. However, the Tribunal did not consider what Easy Car had done on 4 and 5 August and whether any reassessment of the decision to dismiss had in fact occurred. The EAT remitted the case to a differently constituted tribunal to expressly determine what (if anything) occurred on 4 and 5 August and, consequently, whether dismissal was because of Miss Thompson's pregnancy and whether that was the reason as at 5 August.

Comment

The case gives some comfort for employers as it confirms that they will not be liable for automatic unfair dismissal or discrimination on pregnancy grounds where they do not believe that the employee is pregnant or have actual knowledge of the pregnancy when the decision to dismiss is made.  Also, there is no legal obligation to revisit a lawfully made decision if subsequent to the decision being made, the employer becomes aware that the employee is pregnant.

This case also reinforces how important it is to document decisions at the time they are made.

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Kerry Garcia

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