The Appeal Tribunal has handed down a judgement in a case where the employer dismissed a probationary employee only to discover afterwards she was pregnant. The employee sued for discrimination and claimed that because the dismissal was due to her absence, and highly emotional state, it “must have been obvious” that she was pregnant!
The employee in question was on borrowed time with the employer due to lateness, absence, too many cigarette breaks, arguing with colleagues and finally arguing with a customer.
The Appeal Tribunal applied a little common sense and stated that the correct test was whether or not pregnancy WAS THE REASON for the dismissal. If the employer hadn’t known about the pregnancy, it could not have been the reason for the dismissal.
This contradicted the original tribunal which had ruled that the dismissal WAS discriminatory. They had reasoned that once the employer knew she was pregnant, the reasons for her behaviour must have been obvious and they could have reconsidered. The Appeal Tribunal rejected this approach.
Indeed, it said that if the employer had reconsidered the dismissal, it would have been under a duty to take the pregnancy into account. However, because the employer did not reconsider the dismissal, then the decision was taken before they knew, and cannot have been discriminatory.
The lessons for employers are many fold in this case and include basing decisions on what is known at the time, taking prompt action and being clear what the reason or reasons for dismissal are.
The employer in this case escaped liability by not reconsidering the dismissal of a probationary employee.
Interestingly, mental volatility was argued as suggesting pregnancy to an employer, but no one commented on the employee taking too many smoke breaks which to us, would suggest a person who is not pregnant!
The case can be read in the original at this link. https://assets.publishing.service.gov.uk/media/5a96b2a340f0b67aa5087bb9/Really_Easy_Car_Credit_Ltd_v_Miss_A_Thompson_UKEAT_0197_17_DA.pdf