Do employers have to review previous decisions once they’re aware an employee is pregnant?
Pregnant employees are protected against being treated unfavourably because of their pregnancy. Additionally, dismissing an employee because they are pregnant is an automatic unfair dismissal.
In Really Easy Car Credit Ltd v Thompson, the employee began her three-month probationary period on 20th June 2016. Early on, a number of issues were raised with her, including taking too many breaks, and her performance was said to be “average at the best”.
The employee became aware she was pregnant in July 2016 but did not inform the employer. She suffered pains over a weekend and, on Tuesday 2nd August, told her manager she was going to hospital after being in pain for a few days. One of the directors was unhappy because he felt the employee should have gone to hospital earlier. He decided he wanted to terminate her employment but agreed with the other directors to give her another opportunity.
She returned on 3rd August when an incident arose with a customer. After being spoken to by her manager, the employee got upset and went home. That afternoon, the directors decided to dismiss the employee because of her conduct, her performance and her “emotional volatility”. A dismissal letter was drafted that day but they decided to hand this to the employee on her return.
The employee was contacted by phone on 4th August when she told her manager she was pregnant. The employee returned to work the next day and was given the prepared dismissal letter. The reasons for dismissal were explained, and it was reiterated the decision was not related to her pregnancy. The employee brought a claim for automatic unfair dismissal and pregnancy discrimination.
Although the employment tribunal found the decision to dismiss was taken on the 2nd August, in their view, they held it was so obvious to the employer that her emotional state and hospital attendance were pregnancy-related once they were informed of this. As the employer could not prove the dismissal wasn’t pregnancy-related, the tribunal upheld the claims.
The Employment Appeal Tribunal (EAT) overturned the decision. The questions to be asked were:
• Was the pregnancy itself the reason or principal reason for the dismissal?
• Was the decision to dismiss because of her pregnancy?
The employer only became aware the employee was pregnant after the dismissal decision was made and, the EAT said, knowledge of pregnancy does not place a positive obligation on an employer to go back and revisit their lawful decision. The tribunal did, however, have to consider whether further decisions were taken once they became aware of the pregnancy and sent this back to tribunal.
What does this mean for employers:
• In order to discrimination or unfairly dismiss an employee on the grounds of pregnancy, employers are required to have knowledge of the pregnancy at the time they make the decision;
• Being informed an employee is pregnant does not legally require an employer to go back and review their earlier lawful decisions;
• Employers will, however, have to be wary of re-examining previous decisions or coming to new decisions in light of their knowledge of the employee’s pregnancy;
• Keeping proper evidence and notes of decisions made will ensure employers can prove what factors were taken into account when making these decisions.