Alcedo Orange Limited v G Ferridge-Gunn

In a pregnancy-discrimination dismissal claim, the tribunal must identify the natural person or persons who made the relevant decision and determine whether pregnancy was a material influence on their decision. It must not attribute a discriminatory motive held by an informant to an innocent sole decision-maker by combining their states of mind.

Where discriminatory information or views are supplied to an innocent decision-maker, the supply of that information is a separate potentially discriminatory act. A dismissal finding is unsafe if the tribunal does not clearly determine whether the decision was sole, joint, or made by a decision-maker who adopted the prohibited reason: Reynolds v CLFIS (UK) Ltd [2015] ICR 1010.

The claimant was employed as a recruitment manager from January 2020. She told the respondent that she was pregnant and was dismissed shortly afterwards. She alleged pregnancy discrimination under section 18 of the Equality Act 2010 and automatic unfair dismissal under the Employment Rights Act 1996.

The Liverpool Employment Tribunal held that the dismissal was pregnancy discrimination, but rejected the automatic unfair dismissal claim. It found that Ms Caunt had been influenced by the claimant’s pregnancy when she gave information to Mr Boardman, and that Mr Boardman relied on that information when dismissing the claimant.

The employer appealed only the discrimination finding. The central issue was whether the tribunal had properly identified the decision-maker or decision-makers and applied the rule governing discriminatory tainted information.

1. Appeal allowed. The finding of pregnancy discrimination was unsafe and the section 18 claim was remitted to the same Employment Tribunal.

2. For discrimination under section 18 of the Equality Act 2010, the tribunal had to determine why the claimant was dismissed. It had to identify the natural person or persons who made the decision and decide whether the claimant’s pregnancy was a material influence on their reasoning.

3. Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 rejects a composite approach to discriminatory tainted-information cases. Where an innocent decision-maker acts on information supplied by a discriminator, the informant’s act is a separate discriminatory act. The informant’s motive cannot simply be attributed to the innocent decision-maker. This differs from a joint decision, or from a case in which the decision-maker knowingly adopts a prohibited reason.

4. The Tribunal’s reasons did not clearly resolve whether Mr Boardman was the sole decision-maker, whether he and Ms Caunt jointly decided to dismiss, or whether he knew and adopted a pregnancy-related reason advanced by Ms Caunt. Its references to their discussions, the claimant’s absence, and the information supplied by Ms Caunt pointed in different directions. Mr Boardman was therefore not able to know whether, or why, he had been found personally to have discriminated.

5. The Tribunal had made careful factual findings and had not been referred to Reynolds. It should therefore reconsider the section 18 claim, deciding whether further evidence is required. The claimant may apply to amend to advance a separate complaint concerning Ms Caunt’s provision of information, including any loss flowing from that act.

• Employment Appeal Tribunal — allowed the employer’s appeal against the pregnancy-discrimination finding and remitted that claim to the same Tribunal: [2023] EAT 78.
• Employment Tribunal, Liverpool — judgment sent to the parties on 24 May 2022. It upheld the pregnancy-discrimination claim under section 18 of the Equality Act 2010, but rejected the automatic unfair dismissal claim.