Can a decision to dismiss an employee be fair if the decision to dismiss was before the employer discovered the employee was pregnant but the employer had knowledge of pregnancy before the dismissal took effect?

Really Easy Car Credit Ltd v Thompson

Ms Thompson, the Claimant, was employed as a telesales operative by Really Easy Car Credit, the Respondent. The Respondent was in the business of selling car credit for the purchase of second hand cars.

The Claimant had been employed for just over a month and was still in her probationary period. During this time issues had arisen with the amount of calls the Claimant made to clients, the amount of cigarette breaks she took and her demeanour towards colleagues.

During the first week of her second month of employment, whilst she was on leave, the Claimant discovered she was pregnant. On the day she was due back at work, the Claimant experienced pains and was admitted to hospital to find out whether or not she had miscarried.

The Claimant did not tell the Respondent why she had been admitted to hospital. The Respondent’s joint-owner told the Claimant not to worry about missing work. However, the other joint owner felt that this absence was the last straw and the Claimant should have gone to hospital sooner, the joint owner wished to dismiss the Claimant.

The Claimant was then involved in a confrontation with a customer. The Claimant was sent home and the Respondent decided to terminate the Claimant’s employment when she returned to work. The reason for this was due to her poor performance and emotional volatility. Before her return, the Claimant had a conversation with the Respondent’s manager and told him she was pregnant.

Nonetheless, the Claimant was dismissed the following day and assured it was nothing to do with her pregnancy. The Claimant initiated an ET claim arguing the decision to dismiss was related to her pregnancy.

The ET agreed, despite the decision to dismiss being made before knowledge of her pregnancy. The Claimant’s emotional volatility and the altercation with the customer were related to her pregnancy and thus made the dismissal automatically unfair.

The Respondent appealed stating that the decision to dismiss could not have been tainted by the knowledge of the Claimant’s pregnancy because they did not know she was pregnant when the dismissal decision was made. The EAT allowed the appeal and remitted the case back to ET to determine whether the Respondent re-examined their decision after learning of the pregnancy.

The Takeaway Point:

Maybe, if the decision was because of the pregnancy then the employer will have discriminated against the employee. In this case if the ET finds the Respondent’s re-examination decision was based on the Claimant’s pregnancy, or if the knowledge of the pregnancy was ignored (pregnancy and emotional volatility being a clear link), then it could result in the Claimant’s claim succeeding.

However, if the decision is not related to pregnancy, for example if a pregnant employee misses work for non-pregnancy related reasons, or, if a pregnant employee is caught committing an act of gross misconduct such as stealing, then the decision to dismiss won’t be discriminatory as it is not related to the employee’s pregnancy.

Feedback of the Week:

Last but not least we thought we’d share some lovely feedback  we received this week from one of Phil’s happy clients. It’s always nice to feel appreciated so a big thank you to her for both her thoughtfulness and kind words:

“Professional and friendly team. Quickly transforming my stressful situation by offering a sensible no-nonsense solution to my employer. No fuss, no delays or long letters. I can’t praise them enough. A refreshing law firm making a real difference.”