The EAT has held that in a case for a pregnancy related unfair dismissal, the key date in analysing the decision to dismiss is when the employer becomes aware of the pregnancy.
In Really Easy Car Credit Ltd v Thompson the Claimant was dismissed in her probationary period, the employer citing performance and conduct as the rationale. After making the decision (on 3 August 2016), the Claimant informed the employer she was pregnant the following day (4 August), but the decision to dismiss was not communicated until 5 August.
The EAT, overturning the original ET decision, held that the decision to dismiss had not been automatically unfair due to the Claimant’s pregnancy. The key issue to be determined was whether the decision to dismiss was made because of the Claimant’s pregnancy. Here, the employer did not know of the Claimant’s pregnancy when it made the decision to dismiss (although it did not notify the Claimant of the decision until after her notification).
The case has been remitted to a fresh ET to consider whether the directors re-examined their decision to dismiss after they discovered the pregnancy (but before the decision was communicated).
This case clearly highlights the need for evidence to be kept at the time of a dismissal. In cases such as this, where the date of the decision is in issue, evidence made at the time of the decision will be crucial for employers.