Pregnancy discrimination: Can an employer be guilty by failing to consider new information?

Section 99 of the Employment Rights Act 1996 provides that an employee’s dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is connected to her pregnancy. An employer will only be liable under section 99 if it knew, or believed, that the employee was pregnant when it made the decision to dismiss.

In the case of Really Easy Car Credit Ltd v Thompson UKEAT/0197/17/DA, the company had made the decision to dismiss the Claimant during her probationary period on 3 August 2016 due to her ‘emotional volatility’ and poor performance. The company became aware of the Claimant’s pregnancy on 4 August 2016 and gave her notice of her dismissal on 5 August 2016. She brought a claim for pregnancy discrimination.

The Employment Tribunal found that when the company became aware of the Claimant’s pregnancy, it should have been apparent that her conduct was a result of her pregnancy and therefore the decision to dismiss the Claimant should have been reconsidered in light of the new information. The company appealed that decision.

The Employment Appeal Tribunal found in favour of the company. It said that the Employment Tribunal had been wrong to conclude that the company could be liable by omission. There is no requirement in section 99 for an employer to revisit its decision in these circumstances. The Employment Appeal Tribunal referred the case back to a different Employment Tribunal and directed that it consider not whether the company omitted to reconsider the decision, but whether as a matter of fact, it did revisit the decision and thereby could be said to have made an informed decision to dismiss in light of  the Claimant’s pregnancy.

The Employment Appeal Tribunal indicated that if a new decision had been made that took into account the Claimant’s pregnancy and this formed the basis of the dismissal, then her claim may succeed. On the other hand, if the company had no knowledge of the pregnancy when the decision was made and did not reconsider the dismissal, then the pregnancy could not be properly said to be a reason for the dismissal and the claim would fail.

It remains to be seen what the decision of the second Employment Tribunal will be, but the appeal decision is a cautionary tale to employers to avoid delay in providing a notice of dismissal to employees.

If you have any questions regarding this topic or any employment issue, please contact Head of Employment, Linky Trott, or any member of the Edwin Coe Employment team.

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