REWARD INSIGHT
Pregnancy, discrimination, disability
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Really Easy Car Credit Ltd v Thompson Employees are protected against discriminatory treatment because of their pregnancy or maternity during the protected period, and any dismissal for a reason connected to their pregnancy will be automatically fair. The Employment Appeal Tribunal (EAT) has passed judgment on whether knowledge of pregnancy requires employers to review a previous dismissal decision. The employee commenced a three- month probationary period on 20 June 2016. During the early stages of her employment several conduct issues were raised, and her performance was viewed as “average at the best”. In July 2016, the employee discovered she was pregnant but did not inform the employer. She suffered pains over the last weekend of July which continued on Monday. When she was due to work on Tuesday 2 August, she informed her manager she would be absent as she was going to hospital after suffering pains for a few days. A director was not happy with this because he felt she should have gone to hospital earlier. He formed the opinion he wanted to terminate her employment. The employee returned to work on 3 August. An incident occurred with a customer and, after speaking to her
manager, the employee got upset and went home. That afternoon, the directors decided to dismiss the employee due to her conduct, her poor performance and “emotional volatility”. A dismissal letter was drafted that day but it was decided to hand this to the employee upon her return. ...no requirement on the employer to go back and revisit previous decisions The employee was contacted to discuss her return to work on 4 August. During this conversation, the employee made her manager aware that she was pregnant. The following day the employee came back to work and was given the prepared dismissal letter, with it being emphasised dismissal was not due to her pregnancy. The employee made claims for automatic unfair dismissal and pregnancy discrimination, contending the dismissal letter was back-dated and the decision was made after they became aware of her pregnancy. When examining the claims, the employment tribunal (ET) was satisfied that the decision to dismiss was reached on 3 August, before the employer
had knowledge of her pregnancy, and the reasons for dismissal were her performance and emotional volatility. They went on, however, to find that it was obvious the hospital attendance and emotional state were pregnancy-related once they were aware of her pregnancy. This was sufficient to put the burden of proof on the employer and, since they could not show the dismissal was not pregnancy-related, the claims were successful. The EAT held the ET had failed to consider whether the reason or principal reason for dismissal was her pregnancy, or because of her pregnancy. In order to prove this, the employer would be required to know the employee was pregnant at the time they made the decision but, once aware, there is no requirement on the employer to go back and revisit previous decisions. As the ET was satisfied the dismissal decision was made before being notified of her pregnancy, there was no unfair dismissal or discrimination up to 3 August. The EAT did, however, remit the case back to a different tribunal to consider whether further decisions were made on 4 or 5 August because of the employee’s pregnancy, and whether any later decision was the reason for dismissal. Capita Customer Management v Ali
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| Professional in Payroll, Pensions and Reward | June 2018 | Issue 41
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