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

The Employment Appeal Tribunal held that the Employment Tribunal erred in law by failing properly to apply the burden of proof in a pregnancy discrimination and related automatic unfair dismissal claim under section 18 and section 136 of the Equality Act 2010 and by failing adequately to consider whether the employer's selection of a two-person redundancy pool could have been materially influenced by the claimant's pregnancy. The tribunal took account of the respondent's explanation at the prima facie stage contrary to the Igen guidance and relevant authorities (including Igen, Hewage and Field), and did not give adequate reasons for rejecting the possibility of discrimination arising from the deficient redundancy procedure and the close temporal proximity between disclosure of pregnancy and dismissal. The appeal was allowed and the matter remitted for rehearing before a different Employment Tribunal.

Background and parties: The claimant worked for the respondent from 20 May 2018 until her effective dismissal on 1 February 2019. She informed the employer of her pregnancy (due 24 June) shortly before receiving an email proposing redundancy and, after not replying, was treated as having accepted dismissal. The claimant brought complaints including pregnancy discrimination under the Equality Act 2010 and automatic unfair dismissal under the Employment Rights Act 1996.

Procedural posture: This is an appeal from an Employment Tribunal judgment of 17–19 May 2021 (sent 29 June 2021). Limited grounds of appeal were permitted to proceed by Deputy Upper‑Tribunal Judge Stout.

Issues framed:

• Whether the Employment Tribunal erred in law in applying the burden of proof in discrimination claims (section 136 EQA and the Igen guidelines).
• Whether the tribunal should have examined the employer's decision to limit the redundancy pool to two employees and whether that decision might have been materially influenced by the claimant's pregnancy.
• Whether the tribunal should have drawn an adverse inference from procedural failures in the redundancy process and the employer's explanation.

Court's reasoning: The Employment Appeal Tribunal applied authorities on the burden of proof (notably Igen & Ors v Wong, Hewage, Field) and emphasised that when there is evidence from which discrimination could be inferred the tribunal must not take the employer's explanation into account at the first stage. The EAT found that the Employment Tribunal had, contrary to Igen, effectively relied on the respondent's explanation when deciding that the burden had not shifted. The tribunal had also failed adequately to analyse the selection of the pool and the procedural failures in context, particularly given the close temporal link between disclosure of pregnancy and dismissal. Because these errors were fundamental and could have affected outcome, the appeal was allowed and the matter remitted to a different Employment Tribunal for rehearing.

Appeal allowed. The Employment Tribunal erred in law by failing properly to apply the burden of proof and by failing adequately to examine the selection of the redundancy pool and the effect of procedural failures in the context of the claimant’s pregnancy. The decision is remitted for rehearing before a different Employment Tribunal.

Appeal from an Employment Tribunal hearing at Nottingham on 17–19 May 2021 (judgment sent 29 June 2021). Limited grounds of appeal were permitted to proceed by Deputy Upper‑Tribunal Judge Stout. The EAT allowed the appeal and remitted the claim for rehearing before a different Employment Tribunal.