No obligation to revisit dismissal decision on learning of employee’s pregnancy

An employer who learns that an employee is pregnant after it has decided to dismiss, but before the decision is implemented, is not required to revisit its decision once it finds out that she is pregnant.  

Facts

In Really Easy Car Credit Ltd v Thompson, Ms Thompson was dismissed during her probationary period due to her emotional volatility and failure to fit in with the employer’s work ethic.  The employer decided to dismiss her on 3 August 2016 and drafted a dismissal letter.  Rather than post it to her, it decided to wait until she next came into work for a meeting so that it could hand over the letter in person.  She spoke to her manager on 4 August and confirmed she would be in the next day.  During that conversation she informed him that she was pregnant.   On 5 August she was informed of her dismissal and given the dismissal letter dated 3 August.  

She alleged that she had been dismissed because she was pregnant and so her dismissal was automatically unfair and discriminatory.  The employment tribunal accepted the employer’s evidence that it had decided to dismiss her on 3 August, before it learned of her pregnancy. The decision was therefore unrelated to her pregnancy. However, it ruled that once the employer learned of her pregnancy, it must have been obvious that her emotional volatility and other conduct was pregnancy-related.  This was sufficient to require the employer to prove that the dismissal was in no sense whatsoever related to her pregnancy and it had failed to do so.  The employment tribunal therefore upheld her claims.

The employer appealed to the Employment Appeal Tribunal (EAT).  

Decision 

The EAT upheld the employer’s appeal.  The employment tribunal found that the employer did not know of her pregnancy when it decided to dismiss her on 3 August.  Its subsequent finding suggested that the employer ought to have reconsidered its decision once it learned that she was pregnant.  That was wrong.  The employer could only be liable if it knew or believed that Ms Thompson was pregnant when it took the decision to dismiss.  

Implications

Where an employer decides to dismiss a pregnant employee before it learns of her pregnancy, the dismissal will not be automatically unfair and will not be discriminatory on grounds of pregnancy (assuming it has no reason to believe that she may be pregnant).  The employer will only be liable if its reason or principal reason for dismissal is the employee’s pregnancy (unfair dismissal) or if the dismissal is because of pregnancy (pregnancy discrimination).   Employers should be careful about revisiting a decision to dismiss after learning that an employee is pregnant.  A fresh decision to dismiss at that point taken on grounds that the employee is pregnant will turn a lawful dismissal into an unlawful one.