EAT MATERNITY RIGHTS AND PARENTAL LEAVE – Unfair dismissal
SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Burden of proof
Automatic unfair dismissal by reason of pregnancy – section 99 Employment Rights Act 1996 and regulation 20 Maternity and Parental Leave etc Regulations 1999
Pregnancy discrimination – section 18 Equality Act 2010
Burden of proof – section 136(2) Equality Act 2010
The Claimant had worked for the Respondent for a short period of time and was still within her probationary period when it was decided that she would be dismissed due to her ’emotional volatility’ and ‘failure to fit in with the Respondent’s work ethic’. The ET accepted that this decision was made on 3 August 2016, before the Respondent was aware that the Claimant was pregnant. On 4 August 2016, when arranging a meeting with the Claimant to tell her of this decision, the Respondent learned of the Claimant’s pregnancy. The meeting went ahead on 5 August 2016, when the Claimant was informed of the decision reached two days earlier and provided with a letter confirming the reasons for it. The ET found, however, that delaying the communication of the Claimant’s dismissal meant the Respondent had the opportunity to review its decision in the light of its knowledge of the Claimant’s pregnancy, which ‘clearly had a bearing on the behaviour that the Respondent considered was the last straw’. The ET found the Claimant had therefore ‘proved facts sufficient to reverse the burden of proof’ and the Respondent had failed to show that the dismissal was in no sense whatsoever related to the Claimant’s pregnancy; it upheld the Claimant’s complaints of pregnancy discrimination and automatic unfair dismissal by reason of pregnancy. The Respondent appealed.
Held: allowing the appeal
The ET had failed to apply the correct legal test in this case; it had effectively found the Respondent liable by omission – the ET apparently considering that the Respondent ought to have re-visited its decision to dismiss the Claimant (taken on 3 August, without any knowledge of her pregnancy) once it learned she was pregnant. The ET took the view that once the Claimant had told the Respondent she was pregnant ‘It must have been obvious . . that the Claimant’s attendance at hospital and her emotional state were pregnancy related’. That was not the correct legal test; the ET had been required to determine whether the Claimant’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. The ET had also erred in concluding that the answer to this question was provided by the shifting burden of proof. It had made no finding of fact, further to its finding as to the decision taken on 3 August, such as would establish a prima facie case and shift the burden to the Respondent. Moreover, the ET had failed to consider any explanation provided by the Respondent; had it engaged with the Respondent’s case, it would further have been apparent to the ET this was directed to the claim as put by the Claimant, which was not the case being considered by the ET itself.
Judges:
Eady QC HHJ
Citations:
[2018] UKEAT 0197 – 17 – 0301
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 05 April 2022; Ref: scu.605704
