It seems logical that an employer can only unlawfully dismiss an employee for pregnancy-related reasons if the employer knows the employee is pregnant at the time at which the decision to dismiss is made. But what happens when the employer finds out about the pregnancy after making the dismissal decision, but before employment terminates? The recent case of Really Easy Car Credit Ltd v Thompson considered this issue.
Ms Thompson only worked for Really Easy Car Credit (RECC) for a short period of time, before she was dismissed because of concerns about her performance and behaviour. However, Ms Thompson argued that the real reason for her dismissal was related to her pregnancy.
When the Employment Tribunal considered the facts, the ET concluded that the decision to dismiss Ms Thompson was made before the company was aware of her pregnancy, albeit that she was informed of the decision after she had notified them. The ET nevertheless found her dismissal to be unlawful because it concluded that the performance and conduct issues that were the cause of the dismissal were, in all likelihood, a consequence of the employee’s pregnancy.
The case went to the Employment Appeal Tribunal, who concluded that the decision to dismiss itself could not be unlawful if the employer genuinely did not know about the pregnancy at the time at which the decision was made. However, the case was nevertheless sent back to the ET to be reconsidered, because the original ET panel had failed to make any clear findings of fact about what had happened during the period after the decision was made, but before it was communicated to Ms Thompson. Did the company review its decision during this period of time, having learnt of the employee’s pregnancy? If so, it was still possible that her pregnancy had played a role in the company’s decision to dismiss her. These issues needed to be fully considered before a robust decision could be made.
This case does not radically change our understanding of the law in this area. However, it is nevertheless an important reminder of the significant obligations that fall on employers when dealing with employees who have a ‘protected status’. It also underlines the fact that sometimes it is important to be able to demonstrate when as well as how a decision to dismiss has been made.
If you are dealing with a difficult and sensitive issue of this nature, please contact us for detailed advice. Remember, the financial and reputational risks of getting these situations wrong can be considerable.