Really Easy Car Credit Ltd v Thompson

For pregnancy-related automatic unfair dismissal and pregnancy discrimination, the tribunal must identify the employer’s operative reason for dismissal. Pregnancy must itself be the reason, or principal reason, for dismissal. An employer does not incur liability merely because, after learning of a pregnancy, it does not revisit a dismissal decision already made without such knowledge.

The burden of proof under Equality Act 2010 section 136(2) does not remove the tribunal’s duty to make findings capable of establishing a prima facie case and then to assess the employer’s explanation. A tribunal must also determine the case pleaded, after giving the employer fair notice of the allegations it must meet.

The Claimant, who was in a probationary telesales role, was dismissed after the Respondent decided on 3 August 2016 that her emotional volatility and failure to fit its work ethic justified dismissal. The Employment Tribunal found that the Respondent did not then know that she was pregnant. It learned of the pregnancy on 4 August and communicated the decision on 5 August.

The Employment Tribunal nevertheless upheld claims for pregnancy discrimination under the Equality Act 2010 and automatic unfair dismissal under the Employment Rights Act 1996. It considered that the Respondent should have appreciated that the matters underlying dismissal were pregnancy-related and had not shown that dismissal was wholly unrelated to pregnancy.

The Respondent appealed. The central issue was whether the Employment Tribunal had applied the correct causation test, burden of proof and pleaded case.

1. Appeal allowed. The Employment Tribunal applied the wrong legal test. It had found that the operative decision to dismiss was made on 3 August, before the Respondent knew or believed that the Claimant was pregnant. On that finding, the decision could not have been caused by pregnancy.

2. For section 99 of the Employment Rights Act 1996 and regulation 20 of the Maternity and Parental Leave Etc Regulations 1999, the question was whether pregnancy was the reason or principal reason for dismissal. Under section 18(2) of the Equality Act 2010, the question was whether dismissal was because of pregnancy. Neither test imposed a positive duty on an employer to reconsider an earlier, non-discriminatory dismissal decision merely because it subsequently learned of pregnancy.

3. The Employment Tribunal made no finding that a further decision to dismiss was taken after notification of pregnancy. Its view that the Claimant’s hospital attendance and emotional state must have been pregnancy-related did not answer the statutory causation question. Nor had it found that the Respondent knew those matters were pregnancy-related.

4. The Employment Tribunal also misapplied section 136(2). Its finding that the 3 August decision was untainted by knowledge of pregnancy did not establish facts from which pregnancy discrimination could be inferred. Even if a prima facie case had arisen, it was necessary to engage with the Respondent’s explanation.

5. Further, the Tribunal had effectively decided an unpleaded omission case, without fair notice to the Respondent. The original findings were insufficient to determine whether a further decision was made after 4 August. The findings and liability decision were set aside and the matter was remitted to a differently constituted Employment Tribunal. It is bound by the findings up to the pregnancy notification, but must determine what occurred afterwards and the true reason for dismissal.

• Employment Appeal Tribunal: Allowed the Respondent’s appeal in [2018] UKEAT 0197_17_0301, set aside the Employment Tribunal’s findings of pregnancy discrimination and automatic unfair dismissal, and remitted the case for fresh consideration by a different tribunal.
• Employment Tribunal, North Shields: Sent judgment to the parties on 10 March 2017. It upheld claims under sections 18 and 39 of the Equality Act 2010 and section 99 of the Employment Rights Act 1996 with regulation 20 of the Maternity and Parental Leave Etc Regulations 1999.