Dismissal and pregnancy

What would you do if you had cause to dismiss a female employee and then you discovered that she is pregnant; something you were unaware of.

A woman is protected from dismissal for any reason which is “connected to her pregnancy, childbirth or maternity leave” from day one of her employment. In the event of her employment being terminated for any pregnancy related reason the dismissal will be automatically unfair and discriminatory and she will be able to bring a claim against her employer immediately as there is no qualifying period of service. This will apply to a dismissal that is directly attributable to an employee’s pregnancy and those reasons which are linked to either the taking of time off for antenatal care or absence due to a pregnancy-related illness or suffering a miscarriage. Women undergoing IVF treatment are also protected by this rule.

A recent case saw an employer dismiss an employee while not being aware of the fact that she was pregnant at the time. What happened in this case?

On 3 August 2016 the Really Easy Car Company (R) decided to dismiss Thompson (T) whilst she was still in her probationary period. This decision was reached due to T’s “emotional volatility” and her “failure to fit” in with its work ethic. A meeting was arranged for the 5 August where R intended to communicate this decision to T. On 4 August, the day before the arranged meeting, T informed R that she was pregnant – a fact the company had not been aware of beforehand. R decided to press ahead with the meeting arranged for the 5 August and T was dismissed. T subsequently claimed automatically unfair dismissal and pregnancy-related discrimination. The tribunal found in her favour and noted that T’s pregnancy clearly had a bearing on her behaviour. R appealed to the EAT.

The EAT overturned the tribunal’s ruling and held that where an employer decides to dismiss and is unaware of an employee’s pregnancy at the time the decision is made, the dismissal cannot be connected to the pregnancy. In other words, an employer cannot be expected to take into account a pregnancy that it did not know about.

In this situation our advice is to tread very carefully. Once you know an employee is pregnant it does not mean they cannot be dismissed – the employer just needs to be able to show that the dismissal is not connected to the pregnancy in any way. For example, if an employee is caught stealing, it is unlikely to be pregnancy-related behaviour.

This case above has now been remitted to a fresh tribunal which will determine whether R acted properly once it was informed of T’s pregnancy. I will keep you updated.

Head of Human Resource at Nicholsons Chartered Accountants Lincoln HR