What employers do and don’t know at a particular point in time is often up for discussion in employment cases. Sometimes employers may take the view that it is best not to ask questions in case they are then saddled with an answer that they did not want to hear.
The recent Employment Appeal Tribunal decision in the pregnancy discrimination case of Really Easy Car Credit Limited v Thompson is one such case where what the employer knew, and when, and what part this played in the decision to dismiss the employee were key.
Knowledge of Pregnancy
Really Easy Car claimed that it had decided to dismiss Miss Thompson because of her “emotional volatility” and not fitting in with the company’s work ethic. This happened during her probationary period and no doubt Really Easy Car thought that as Miss Thompson did not have unfair dismissal rights it was all fairly low risk. What it didn’t know though at the time of making its decision was that Miss Thompson was pregnant.
Really Easy Car then spoke to Miss Thompson the day after the decision to dismiss had been made to arrange a further meeting on the following day to communicate its decision to dismiss her. So there was a two day gap between the making of the decision to dismiss Ms Thomson and the dismissal meeting. During this time, Miss Thompson told Really Easy Car about her pregnancy.
Pregnancy Related Dismissal
After being dismissed Miss Thompson claimed that her dismissal was pregnancy related and brought a claim for pregnancy discrimination and automatic unfair dismissal. She tried to argue that her dismissal letter had been falsely backdated.
The Employment Tribunal focused on the question of whether Really Easy Car should have reviewed its original decision in view of the facts that came to light about Miss Thompson’s pregnancy over the two day period. It decided that Really Easy Car had an opportunity to change its mind and should have done so. Many employers might in my view. The Tribunal essentially looked at what Really Easy Car did not do rather than what it did, namely dismissing Miss Thompson allegedly for a pregnancy related reason.
At the point of her dismissal, it was emphasised to Miss Thompson that the reason for her dismissal had nothing to pregnancy. Miss Thomson had not told Really Easy Car about her absence from work to attend a hospital appointment related to pregnancy or that her emotional outburst at work was connected to pregnancy. There was no evidence that Really Easy Car thought that this was the case.
The case has now been sent back to the Employment Tribunal to consider again the reason for Miss Thompson’s dismissal and whether it was because of pregnancy.
Reasons for Dismissal
Dismissing an employee for “emotional volatility” never seemed a great plan in the first place in my view. Employers who give objective rather than subjective reasons for dismissal are usually on safer ground even where an employee does not have unfair dismissal rights and no reason needs to be given at all.