Alcedo Orange Ltd v Mrs G Ferridge-Gunn

The Employment Appeal Tribunal allowed the employer’s appeal against an employment tribunal finding of pregnancy discrimination because the tribunal failed to apply the principle in Reynolds v CLFIS (UK) Ltd when determining who was the decision-maker and whether that person or persons were influenced by the claimant's pregnancy. The tribunal had found that pregnancy and pregnancy-related absence shifted the burden of proof under section 18 of the Equality Act 2010, but it did not analyse whether the dismissal was the act of a decision-maker motivated by the protected characteristic or instead flowed from "tainted information" provided by another employee. The EAT remitted the section 18 claim to the same employment tribunal for re-determination so that the role and mental processes of the relevant decision-maker(s) could be identified and Reynolds applied.

Background and parties: The claimant worked briefly for the respondent as a recruitment manager. She disclosed her pregnancy on 19 February 2020, was absent for pregnancy-related morning sickness on 24–25 February 2020 and was dismissed on 27 February 2020. The claimant, a litigant in person, brought claims of pregnancy discrimination under section 18 of the Equality Act 2010 and automatic unfair dismissal under the Employment Rights Act 1996. The employment tribunal found pregnancy discrimination but not automatic unfair dismissal.

Nature of the application: Appeal by the respondent to the Employment Appeal Tribunal challenging the tribunal's finding of pregnancy discrimination. The appeal centred on whether the tribunal had properly identified who made the decision to dismiss and whether that decision was motivated by the claimant's pregnancy, in particular whether Reynolds v CLFIS (UK) Ltd should have been applied.

Issues framed by the court:

• Was the claimant dismissed because of her pregnancy (section 18 Equality Act 2010)?
• Was the dismissal automatically unfair for a reason connected with pregnancy (Employment Rights Act 1996)?
• Who was the decision-maker and what was the effect of "tainted information" supplied by another employee?

Reasoning and procedural history: The EAT analysed the employment tribunal's findings of fact: the claimant's meetings with the managing director (Mr Boardman) and her line manager (Ms Caunt), the contemporaneous performance concerns, the pregnancy disclosure and the subsequent absences. The EAT held that the employment tribunal had not been referred to Reynolds and therefore did not undertake the necessary analysis to determine whether the dismissal was the act of a decision-maker motivated by the protected characteristic or whether it derived from discriminatory information supplied by another employee. The EAT emphasised the need to identify the natural person or persons who made the dismissal decision and to consider whether any such person was influenced by the pregnancy. The EAT concluded the tribunal's reasoning was insufficiently clear on these points and remitted the Equality Act claim to the same tribunal to determine the matter in light of Reynolds. The EAT also noted the distinct burden of proof for automatic unfair dismissal and left that conclusion intact.

Remedy sought and disposition: The respondent's appeal was allowed in respect of the pregnancy discrimination finding and the Equalities Act 2010 claim was remitted to the employment tribunal for reconsideration; the tribunal's finding on automatic unfair dismissal was not upheld by the claimant on appeal.

This was an appeal allowed. The EAT held that the employment tribunal's finding of pregnancy discrimination was unsafe because the tribunal did not properly apply Reynolds v CLFIS (UK) Ltd and did not clearly identify who made the decision to dismiss and whether that decision-maker was motivated, in any material part, by the claimant's pregnancy. The claim under section 18 Equality Act 2010 was remitted to the same employment tribunal to re-determine the pregnancy discrimination issue in accordance with Reynolds; the tribunal should decide whether additional evidence or submissions are required.

Appeal to the Employment Appeal Tribunal from the employment tribunal sitting in Liverpool (hearing 5–8 March 2022; decision sent 24 May 2022). Two elements of the original ground of appeal were permitted to proceed by Michael Ford KC sitting as a Deputy High Court Judge. The EAT allowed the appeal and remitted the Equality Act 2010 claim to the same employment tribunal for re-determination. Neutral citation: [2023] EAT 78.