Case law: Discovering employee is pregnant between decision to dismiss and putting it into effect causes problems for employer
Employers who decide to dismiss an employee should put the decision into effect as soon as they can, or risk discovering the employee's pregnancy (or other factor arising) before they have gone requires them to review that decision – otherwise they could face a claim.
This update was published in Legal Alert - April 2018
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An employer dismissed an employee before the end of her probationary period on grounds of 'emotional volatility' and 'failure to fit in with [its] work ethic'. The employer did not know she was pregnant at the time, but put the dismissal into effect two days later. In the meantime, it found out she was pregnant. She claimed discrimination and automatic unfair dismissal on grounds of her pregnancy.
The Employment Tribunal (ET) found that the two-day period between deciding to dismiss, and putting the dismissal into effect, had given the employer time to review its decision, and take into account that she was pregnant. It also found that the pregnancy ‘clearly had a bearing’ on the behaviour for which she had been dismissed. It therefore ruled that the employer had failed to prove the dismissal was not by reason of the employee's pregnancy.
The Employment Appeal Tribunal said that the ET had asked itself whether the employer had revisited its decision once it learnt of the employee's pregnancy. This was the wrong test. The proper test was whether the employee's pregnancy had been the reason, or principal reason for her dismissal and/or whether the decision had been because of her pregnancy. It found that the pregnancy could not have been the reason at the time of the decision, because the employer didn't know about it at the time.
It sent the case back to the ET to rule on whether the employer had reconsidered its opinion after it learnt of the pregnancy. If it did, and the decision took into account her pregnancy, there was a chance she might succeed in her claims.
- Employers who decide to dismiss an employee should put the decision into effect as soon as they can, or risk discovering a factor, between the decision and the actual dismissal (such as pregnancy) that may mean they need to review the decision to avoid a claim.
Case ref: Really Easy Car Credit Ltd v Thompson UKEAT/0197/17/DA
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