Was decision to dismiss motivated by pregnancy?

It is unlawful for an employer to discriminate by treating a woman unfavourably because of her pregnancy, or because of illness suffered as a result of pregnancy, during the protected period. The protected period starts when the woman’s pregnancy begins and usually ends at the end of the maternity leave period or (if earlier) when she returns to work after the pregnancy.

The background

Mrs FG was employed as a recruitment manager. During her probationary period, she had a meeting with the employer’s Managing Director, Mr B, and a manager, Ms C, to discuss her performance. She was given some advice about areas of concern. The following week, Mrs FG informed her employer that she was pregnant. A second meeting took place, and it was thought that there had been some improvement in performance.

A few days later, Mrs FG took two days leave due to morning sickness. During her absence, Ms C found that Mrs FG had failed to process certain documents. Ms C informed Mr B that Mrs FG had misled him about making progress with her performance at their previous meeting. However, this was unfounded, as Mrs FG’s failure to complete the paperwork was due to her absence. When Mrs FG returned to work, Ms C made comments including ‘it is a virus?’, ‘is it contagious?’, and ‘how much time are you going to need for this?’. Mrs FG was dismissed shortly after. She was told that she was being dismissed because it ‘was not working out’ and that her performance was ‘below par’.

The claim – pregnancy discrimination

Mrs FG issued a claim in the Employment Tribunal for pregnancy discrimination. The employer argued that Mrs FG was dismissed for reasons relating to capability, that she had not met her targets and that she was not a ‘good fit’ for the company, not because of her pregnancy.

The Tribunal found that Mrs FG was not performing to the extent required by the employer and this was a serious concern to them. The allegation that Mrs FG had misled Mr B was a factor in the decision to dismiss, and Mr B had relied on information given to him by Ms C. It found that Ms C was influenced in her view of Mrs FG by the fact that she was pregnant. The Tribunal considered that Mrs FG’s pregnancy was a significant factor in the decision to dismiss. The Tribunal found that Mrs FG was discriminated against because of her pregnancy.

The appeal – was dismissal because of pregnancy?

The employer appealed to the Employment Appeal Tribunal (EAT). The employer argued that the Tribunal did not clearly determine who took the decision to dismiss and whether the person (or persons) who made that decision did so because of the pregnancy. The EAT agreed. The Tribunal had not been referred to an earlier Court of Appeal judgment that held that the decision maker must actually have been motivated by the protected characteristic – in this case, pregnancy – an act cannot be discriminatory on the basis of someone else’s motivation.

In this case, there should have been an analysis of whether this was a decision by a sole decision-maker, or a joint decision made by Ms C and Mr B. the Tribunal had not made clear findings as to whether Mr B made the decision to dismiss alone or in concert with Ms C, and therefore whether the decision was motivated by the pregnancy. The Tribunal’s decision was therefore unsafe and the case was sent back to the Tribunal.

Comment

The EAT noted in this case that ‘the fact that a woman is dismissed shortly after telling her employer that she is pregnant often provides compelling support for an inference of discrimination to be drawn’. However, it warned that each case must be determined on its own facts and that ‘just because one thing follows another, it does not necessarily mean that the latter was caused by the former’. To succeed in a pregnancy discrimination claim of this type, there must be a person or persons who decided to dismiss and who were influenced by the pregnancy. The Tribunal should answer the questions – why was the employee dismissed; and did her pregnancy have a material influence on the decision maker(s)? The Tribunal should wherever possible set out clearly who took the decision to dismiss.

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Alcedo Orange Ltd v Mrs Ferridge-Gunn

27 June 2023

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