K Ciochon v Mark Kempe t/a Neville Arms & Neville Arms Inn

In a pregnancy-discrimination claim, an Employment Tribunal must assess whether the proved facts could support an inference that pregnancy materially influenced the dismissal. At that first stage, it must assume there is no adequate explanation and must not rely on the employer’s explanation to prevent the burden of proof shifting.

Unfair treatment alone will not usually establish discrimination. However, serious defects in a redundancy process, coupled with dismissal shortly after disclosure of pregnancy, may support an inference of discrimination and require proper analysis under the statutory burden of proof. Pregnancy need only have had a material influence for a claim under section 18 of the Equality Act 2010, although the statutory test for automatic unfair dismissal is different.

The claimant was employed by the respondent in his hospitality business. She told him that she was pregnant on 4 January 2019. On 29 January she was told that she was proposed for redundancy, and slightly more than 48 hours later the respondent treated her silence as acceptance of dismissal.

The Employment Tribunal dismissed her claims for pregnancy discrimination and pregnancy-related automatic unfair dismissal. It accepted that there was a business downturn and concluded that nothing shifted the burden of proof to the respondent.

The claimant appealed. The central issue was whether the Tribunal had lawfully assessed the redundancy process and the statutory burden of proof when deciding whether pregnancy influenced her dismissal.

1. Appeal allowed. The Employment Tribunal erred in law. Its conclusion that there was no evidence capable of shifting the burden of proof could not stand.

2. The Tribunal had identified the redundancy process as the principal potential source of an inference. It nevertheless said that it was not for it to examine the respondent’s reasoning about the selection pool, provided he had given the matter due thought. That approach failed to address the real issue: whether pregnancy may have been a factor in selecting the claimant for redundancy. The pool had to be assessed in the context of the process as a whole.

3. The process contained substantial defects. There were no written records, the other employee in the pool was not told she was at risk, there was no individual meeting with the claimant, and the respondent treated silence over 48 hours as agreement to voluntary redundancy. The Tribunal found the respondent’s asserted ignorance surprising and did not expressly accept it.

4. Under section 136 of the Equality Act 2010, the first-stage inquiry asks whether the facts could support an inference of discrimination in the absence of an adequate explanation. Applying [2005] ICR 931, the Tribunal could not take the respondent’s explanation into account at that stage. Unfairness alone is insufficient, as explained in [2003] IRLR 640 and [2006] IRLR 865. Here, however, the procedural unfairness occurred shortly after pregnancy disclosure and required a proper burden-of-proof analysis.

5. For the section 18 claim, pregnancy need only have had a material influence on dismissal. The claims were remitted for rehearing before a differently constituted Employment Tribunal. The errors were fundamental, and remittal to the same Tribunal would not materially save time or cost.

• Employment Appeal Tribunal: Allowed the appeal and remitted the claims for rehearing before a differently constituted Employment Tribunal: [2024] EAT 48.
• Employment Tribunal: Employment Judge Blackwell and members, sitting at Nottingham, dismissed the claimant’s pregnancy-discrimination and pregnancy-related automatic-unfair-dismissal claims in a judgment sent to the parties on 29 June 2021.