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Pregnancy related discrimination: When did the employer have knowledge of the pregnancy?Back

A recent case at the Employment Appeal Tribunal (EAT) has reaffirmed the importance of an employer’s knowledge of an employee’s pregnancy when considering liability for sex discrimination.

In Really Easy Car Credit Limited v Thompson the EAT on the facts before it found that the employer was not liable because it had taken the decision to dismiss the employee before it found out she was pregnant.  In this case, it was clear that the directors had made the decision that they were going to dismiss the employee during her probationary period because they were unhappy with her performance and conduct.  After that decision was made, but before the decision was communicated to the employee, the directors were then told of her pregnancy.  This didn’t change their decision however and they went ahead and dismissed because of the performance and conduct issues.

The original tribunal had found the dismissal automatically unfair and an act of pregnancy discrimination.  However, this was overturned by the Employment Appeal Tribunal.  It found that the decision to dismiss couldn’t have been because of the pregnancy, because the employer knew nothing about it at the time they made the decision.

If there was evidence that directors re-examined their decision after they learned of the pregnancy but before communicating the decision of dismissal, then that could allow the employee’s claim to succeed and that matter was sent back down to the original tribunal.

Interestingly, on these facts, some of the poor performance/conduct issues were mood swings and absence. One might draw a connection to pregnancy, but the Employment Appeal Tribunal refused to do so and re-affirmed previous case law that symptoms which could potentially be linked to a pregnancy in circumstances where the employer did not know about the pregnancy itself would not be enough for a finding of discrimination or automatically unfair dismissal. That might be different, of course, if there was a suggestion that the employer was deliberately blinding itself to the obvious.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.

Posted by Sue Robinson on 09/03/2018