EAT SEX DISCRIMINATION – Pregnancy and discrimination
SEX DISCRIMINATION – Burden of proof
Pregnancy discrimination – section 18 Equality Act 2010
Burden of proof – section 136 Equality Act 2010
The Claimant had notified the Respondent of her pregnancy shortly before a management restructure was announced that put her position at risk of redundancy. The manager responsible for the restructure had failed to notify HR of the Claimant’s pregnancy or to take other required steps, such as the carrying out of a risk assessment but this, the ET concluded, was simply due to her lack of experience in this regard; more generally, the ET was satisfied the restructure was for entirely proper reasons, unrelated to the Claimant’s pregnancy. The Claimant applied for one of the alternative positions in the new structure but was unsuccessful; this selection process, the ET accepted, had been fair but was based on performance on the day and the Claimant had the poorest score. There were two other (lower grade) supervisor positions, which the Claimant also applied for but then left on pregnancy-related sick leave and was unable to attend for further interview. The Respondent decided to use the scores for the previous selection process, which meant the Claimant failed as she had the lowest score; having not succeeded in obtaining one of the remaining positions, the Claimant was selected for redundancy and duly dismissed.
On the Claimant’s claims of automatic unfair dismissal and pregnancy discrimination, the ET concluded that her pregnancy had not been the principal reason for her dismissal and thus she had not been automatically dismissed for the purposes of section 99 Employment Rights Act 1996, but (applying the different test under section 18 Equality Act 2010) she had suffered unfavourable treatment because of her pregnancy as this had materially influenced the decision to use a method of selection for the supervisor positions, which had been an effective cause of her dismissal. The Respondent appealed against the ET’s decision on the section 18 claim.
Held: allowing the appeal.
The ET’s finding that the burden of proof had shifted for the purposes of section 136(2) Equality Act 2010 was inadequately explained, such that the Respondent could not understand why it had lost on this point, the ET seemingly referring to matters it had already discounted as justifying any inference of discrimination. As for the ET’s approach to the Respondent’s explanation (assuming, in the alternative, that the ET had permissibly concluded the burden had shifted), its findings as to what would have been fair were insufficient to justify the conclusion reached and its approach elided context and reason. Further, to the extent the ET had identified matters that might have suggested a motivation (whether conscious or subconscious) other than that relied on by the Respondent, there was no obvious correlation with the Claimant’s pregnancy (a desire to retain the existing supervisors in post, for example, would still suggest a reason unrelated to the Claimant’s pregnancy even if not a reason the Respondent had been prepared to admit).
Citations:
[2018] UKEAT 0120 – 17 – 0304
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 24 April 2022; Ref: scu.618917
