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Pregnant employees are afforded special protection under the law, especially with regard to dismissal and redundancy. A woman is in the so-called “protected period” from the start of her pregnancy until the end of her maternity leave, and a dismissal or selection for redundancy which is because of her pregnancy or maternity leave is classed as automatically unfair. Where a dismissal is automatically unfair, there is no requirement for an employee to have two complete years of continuous employment before being able to raise an unfair dismissal claim and there is no upper limit on the compensatory award. Such a dismissal is also likely to amount to unlawful discrimination on grounds of pregnancy or maternity under the Equality Act.

For these reasons, employers often approach situations involving a pregnant employee with extreme caution. However, it is important to remember that there is not a blanket prohibition on dismissing or selecting a pregnant woman for redundancy, as long as the reason is not because of the pregnancy or maternity leave.

The misconception that pregnant employees are completely immune from dismissal is widespread, and even in the Employment Tribunal there can be confusion about exactly what the obligations on employers of pregnant employees are. Last month, the Employment Appeal Tribunal considered a case that usefully illustrates how relatively simple concepts are often confused when pregnancy and maternity are thrown into the mix.

In Really Easy Car Credit Limited v Miss A Thompson, the facts appeared to be straightforward.  The employer was not satisfied with an employee who was still in her probationary period, and decided to dismiss her due to her “emotional volatility” and her failure to fit in with their “work ethic”. The decision was made on 03 August 2016 but was not communicated to the employee right away, as she was absent from work. On 04 August 2016, she was also absent from work, but informed her employer by telephone that she was pregnant. When she returned to work on 05 August, she was given the letter confirming her dismissal, which was dated 03 August. The employer emphasised that the decision was due to performance issues and not related to her pregnancy. The employee contended that the decision was because of her pregnancy, and that the letter had been falsely backdated.

Oddly, although the Employment Tribunal found that as a matter of fact the decision to dismiss the employee was taken on 03 August 2016, before the employer was aware of the pregnancy, it also decided that the employer should have revisited the decision to dismiss once it discovered the pregnancy. They further held that it should have been obvious that the Claimant’s emotional volatility and her other conduct was related to her pregnancy. The employer had failed to show that the dismissal was “in no sense whatsoever related to the Claimant’s pregnancy” and upheld her claims of pregnancy discrimination and automatic unfair dismissal.

On appeal, the Employment Appeal Tribunal overturned this decision. It held that the correct legal test had not been applied. The question at hand was when the decision to dismiss had been taken, and the Employment Tribunal had accepted that the decision was taken prior to the employer being aware of the pregnancy. There was no indication that the decision had been reconsidered after being made aware of the pregnancy, and there was no requirement on the employer to do so. Furthermore, it was not reasonable to assume that Claimant’s emotional state and other actions were related to the pregnancy. Even if they were, it is not sufficient to show that factors leading to dismissal are related to pregnancy to render a dismissal automatically unfair.  The test is whether the reason for the dismissal is the pregnancy, which here was not the case.

The Employment Appeal Tribunal remitted the case to a different Tribunal to establish whether the employer had reconsidered the decision to dismiss after finding out about the pregnancy, and whether that became the principal reason for dismissal.

What comes out of this case clearly is that there is confusion about the obligations on employers in relation to pregnant employees. It is perfectly logical that where a decision to dismiss is taken before the employer is aware of the pregnancy, the dismissal cannot be because of the pregnancy. However, there is a tendency for employers (and sometimes tribunals) to move away from what the legislation actually requires. It is clear that dealing with dismissals or redundancies of pregnant employees is complex. Pregnant employees are afforded some special protections, and it is important to remember that. However, there is no blanket ban on dismissals during the protected period, and as long as these are approached carefully and dealt with in line with the law then a fair dismissal is possible.

If you have any queries about any of the issues raised above, please contact a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

Chambers UK 2018

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