The Kilmarnock Football Club Ltd v Ross

Where an employer genuinely, though mistakenly, believes that an employee has resigned, an Employment Tribunal must include that belief in the whole factual matrix when applying the burden of proof in a pregnancy-discrimination claim. It must first decide whether all proved facts could support an inference of discrimination. Only if the burden shifts must it decide whether the employer has proved a non-discriminatory explanation.

An employer which has carried out the required generic assessment is not required to take individual protective action for a pregnant employee before written notification as required by the Management of Health and Safety at Work Regulations 1999. A supposed failure to carry out an individual assessment cannot then found an adverse inference of pregnancy discrimination.

The claimant, a hotel housekeeper, left work while upset following a discussion about her work. She later provided sickness certificates referring to pregnancy-related illness. The employer understood her telephone statement after leaving work as a resignation and later issued a P45. The Employment Tribunal held that she had not resigned, that she had been dismissed because of pregnancy, and that the employer had committed a pregnancy-related detriment by failing to carry out an individual risk assessment.

The employer appealed. The central issues were whether the Tribunal had properly applied the burden of proof to its findings about the employer's genuine belief that the claimant had resigned, and whether the health-and-safety regulations required an individual assessment despite no written notification of pregnancy.

1. Appeal allowed and remitted. The Tribunal erred in its approach to the finding of dismissal because of pregnancy. Its finding that the employer had breached a duty to undertake an individual risk assessment was also erroneous. The relevant issues were remitted to a freshly constituted Employment Tribunal.

2. In applying the burden-of-proof approach in Igen Ltd v Wong [2005] ICR 931, the Tribunal was required to consider all the facts which it had found. Those facts included its acceptance that the head housekeeper genuinely understood the claimant to have said she would not return and believed that this was a resignation. The belief could be mistaken, but it was still relevant both to whether facts capable of supporting an inference of pregnancy discrimination had been established and, if the burden shifted, to the employer's explanation.

3. The Tribunal instead treated the absence of an actual resignation as leaving the employer without an explanation. That omitted a material accepted fact and invalidated its conclusion that the employer had not proved that the treatment was in no sense because of pregnancy.

4. Under the Management of Health and Safety at Work Regulations 1999, the employer had carried out a generic risk assessment. The claimant had not notified the employer in writing of her pregnancy. The employer was therefore not required to take individual protective action or carry out the individual assessment alleged. Even if the subsequent sickness certificates could have constituted notice, the employer then genuinely believed that she had resigned. The supposed absence of an individual assessment could not be used as a fact supporting an adverse inference.

5. The fresh Tribunal was to retain the findings as to what was said and understood in the telephone call, disregard the risk-assessment evidence, and determine the inferences to be drawn from the remaining relevant facts. No further evidence was required; the parties were to make submissions only.

• Employment Appeal Tribunal: Appeal allowed. The findings of pregnancy discrimination and of a breach of the Management of Health and Safety at Work Regulations 1999 were set aside, and the relevant matters were remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal (Glasgow): In written reasons sent on 12 March 2013, it found that the claimant had been dismissed, unlawfully discriminated against because of pregnancy, and automatically unfairly dismissed.