Discrimination and the timing of the decision
Whether or not an employer has discriminated against an employee will often depend on what they knew at the time a particular decision was made. An interesting case covering this point has recently been heard at the Employment Appeal Tribunal. Cecily Donoghue, Employment Solicitor in the Bristol Employment team, reports on the case.
- Miss Thompson started working for Really Easy Car Credit Limited (RECC) on 20 June 2016 and her employment was subject to a 3 month probation period.
- RECC believed her performance was not meeting the standards expected.
- During the week of 25 July 2016 Miss Thompson discovered that she was pregnant. The following weekend she experienced pain and sent a text to her manager on Tuesday 2 August explaining that she wouldn’t be in as she had been in pain since Saturday and needed to go to hospital – she did not tell them that she was pregnant.
- One of the owners responded to her text message confirming that she should not “worry about work. It will be still there when you are sorted”.
- Another of the owners however felt that this was the last straw, if she had been unwell since the previous Saturday she should have gone to hospital earlier, and not waited until she was due to work.
- On 3rd August she returned to work and was spoken to by her manager regarding her absence with a member of HR present. She became upset during the meeting before then going home. That afternoon, the owners had a further discussion internally and decided that she should be dismissed. They were tired of her “emotional volatility” and her performance was “average at best”. A letter was drafted that day confirming the decision but it was felt that it should not be posted out straight away and that there should be a meeting held with her to communicate the decision face to face when the letter would then be given in person.
- On 4th August the manager spoke to Miss Thompson to find out when she would be in work and available to attend a meeting. During this telephone call, she told him that she was pregnant. This information was passed to the owners.
- On 5th August, Miss Thompson returned to work, she was called into a meeting and given the letter dismissing her for performance and the manager stressed that this had nothing to do with her pregnancy. The letter stated:
“It is vital to the efficient operation of the employer’s business that employees abide by the principles and rules within operation alongside our impenetrable work ethic. As you are within a probation period and have not met the satisfactory level we regret to inform you that the said contract will be cancelled….”
Miss Thompson brought claims for automatic unfair dismissal and pregnancy discrimination alleging that the reason for her dismissal was her pregnancy.
First Tribunal decision
The Tribunal held that the decision to dismiss had been made on the 3rd August, however in light of the new information that she was pregnant, it should have been obvious to RECC that the reason for her absence, her attendance at hospital as well as her emotional state were pregnancy related. RECC had nonetheless gone ahead with the dismissal and the Tribunal upheld her claims. RECC appealed.
The key question was therefore whether Miss Thompson’s pregnancy had been the reason for her dismissal (Automatic Unfair Dismissal) or whether her dismissal had been because of her pregnancy (Direct Discrimination).
The EAT criticised the earlier Tribunal’s decision. If the tribunal had concluded that RECC had decided to dismiss her on 3 August, untainted by any knowledge or belief that she was pregnant, how could it then determine that it was unfair or discriminatory?
The EAT held that the Tribunal had failed to apply the correct legal test. Nonetheless, the case was remitted to the tribunal to consider whether the directors should have re-examined their decision after they learned of the pregnancy.
Whilst a fresh tribunal might still uphold the claims in future, this case provides an interesting assessment of the employer’s decision making process. It was in RECCs benefit that they were able to evidence that the dismissal letter had been drafted on the 3rd August and to give evidence of the discussion that was held before they were informed about her pregnancy.
The EAT criticised the earlier tribunal for imposing a positive obligation on RECC to reconsider their decision once it had learned of Miss Thompson’s pregnancy. This is a helpful point for employers but the risk of claims being brought will inevitably still remain.
In practice, if new or additional information such as a pregnancy or disability are raised after a decision has been made, take a moment to consider whether this changes the position. For example, if dismissal is contemplated due to an act of misconduct, if the individual provides evidence of a mental disability this may impact on the level of sanction appropriate in the circumstances.
If you have any queries or issues arising from this article please don’t hesitate to contact our Employment Team.