Dismissal of pregnant employee

20 April 2018

Do you have to reconsider a decision to dismiss an employee if you later find out she is pregnant?

Do you have to reconsider a decision to dismiss an employee if you later find out she is pregnant? Ms Thompson was employed by Really Easy Car Credit, to do online telesales. She had worked there for a short time before discovering she was pregnant. During that time her performance was described as “average at best” and her employer raised various conduct issues with her. Ms Thompson took a day off sick. Unknown to her employer she went to hospital for a scan to find out whether she had miscarried.

On Ms Thompson’s return to work an incident occurred between her and a customer which led to her being spoken to by her manager. She became very upset during this meeting. Her employer decided to dismiss her on 3 August 2016 as they were tired of her “emotional volatility” and thought that her conduct and performance were not good enough. A letter was drafted that day, but it was not posted out as they decided to invite her in for a meeting. Ms Thompson was still within her probationary period.

Meanwhile Ms Thompson spoke to her manager on 4 August and told him that she was pregnant. On 5 August Ms Thompson returned to work. She was handed the prepared dismissal letter, dated 3 August, and explained the reasons for her dismissal, emphasising that it was nothing to do with her pregnancy.

Ms Thompson brought claims for unfair dismissal and pregnancy discrimination. She argued that the letter had been falsely backdated and that the decision to dismiss had not been taken until after she informed her employer of her pregnancy. The Tribunal found that the decision to dismiss was made before her employer knew of her pregnancy, but that it must have been obvious that her “emotional volatility” and other conduct were pregnancy-related. It held that this was sufficient to reverse the burden of proof and that the employer had failed to establish that the dismissal was in no sense related to Ms Thompson’s pregnancy. The employer appealed the decision.

The Employment Appeal Tribunal confirmed that in order for Ms Thompson’s claims to be successful, the employer needed to know or believe, that she was pregnant when they took their decision. However, there was no obligation on her employer to revisit the decision to dismiss once it discovered her pregnancy. It also commented that it was not at all certain that it would be reasonable to assume that an “emotional outburst” must be related to pregnancy.

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