Section 18 of the Equality Act states that it is pregnancy discrimination for an employer to treat a worker less favourably because she is pregnant. In Really Easy Car Credit Ltd v Thompson, the Employment Appeal Tribunal (EAT) held that an employer does not have to revisit a decision to dismiss a worker once they had learnt that the woman was pregnant after the decision to dismiss was made.
Ms Thompson, who started working as a telesales operator in June 2016, was subject to a three-month probationary period which could be terminated on one week’s notice. Certain issues were raised with her in the early weeks of her employment about taking too many cigarette breaks, about wearing the uniform and in relation to her interactions with another colleague.
In the week commencing 26 July 2016, Ms Thompson discovered she was pregnant. She experienced pains over the weekend and when she was due to return to work on Tuesday 2 August, she texted to say she had to go to hospital. After she returned to work on 3 August, there was an incident between her and a customer which resulted in her being sent home. That afternoon it was decided she should be dismissed because of her “emotional volatility”, her conduct and her performance which was deemed to be "average at best". A letter was duly drafted to that effect but not sent.
One of the managers then spoke to Ms Thompson on 4 August and during the conversation she told him that she was pregnant. She returned to work the next day 5 August when the letter was handed to her informing her of her dismissal.
She claimed the employer had made the decision to dismiss after it learned of her pregnancy and brought claims of unfair dismissal and pregnancy discrimination.
The tribunal was satisfied that the employer took the decision to dismiss on 3 August but did not communicate its decision to her until 5 August. It found that the employer’s reason for her dismissal was her emotional volatility and her failure to fit in with the work ethic but that once Ms Thompson told the company that she was pregnant, its directors should have realised that her attendance at hospital and her emotional state were "pregnancy related". The employer failed to review their decision to dismiss in the light of being told by her about the pregnancy had gone ahead and dismissed her anyway.
As the employer failed to show that the dismissal was “in no sense whatsoever” related to the pregnancy, the tribunal upheld her claims of automatic unfair dismissal and pregnancy discrimination. The company appealed on the basis that when it made the decision to dismiss, it was not aware that Ms Thompson was pregnant.
The EAT allowed the appeal on the basis that the tribunal had found the company liable of discrimination “by omission”. In other words, that the company had failed to review its decision to dismiss Ms Thompson once they became aware that she was pregnant.
That was not the correct legal test. Instead the correct test was to ask whether Ms Thompson’s pregnancy itself had been the reason, or principal reason, for her dismissal or whether the decision to dismiss had been because of her pregnancy.
That required the company to know that she was pregnant when it took the decision to dismiss her. The test did not impose a positive obligation on the company to then revisit its decision after it learned of her pregnancy.
The EAT remitted the case to a differently constituted tribunal to decide whether there was any further decision after Ms Thompson notified the company of her pregnancy on 4 August and if the reason for her dismissal as at 5 August was genuine.