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Pregnancy-related discrimination: does the decision-maker matter?

Pregnant woman at work

The recent case of Alcedo Orange Ltd v Ms Ferridge-Gunn is a useful reminder that in discrimination cases it must be the decision-maker who has the discriminatory reason in mind when dismissing an employee.

In this case, about 3 weeks after Ms Ferridge-Gunn started to work for Alcedo Orange Ltd, she told her manager that she was pregnant. Shortly afterwards, she was dismissed for “poor performance”.

Various performance concerns were raised with the claimant, both before and after she told her manager she was pregnant. She met with her manager and the Company’s Managing Director and a performance improvement plan was agreed with her.

While she was on a performance improvement plan, she told her manager that she was pregnant. The manager congratulated her but was not sympathetic. For example, when the claimant suffered from morning sickness, her manager told her to “stop faffing”. The MD was also told of her pregnancy, so he knew of it at the time he dismissed her.

While the claimant was absent with morning sickness, her manager found that the claimant had not completed certain tasks she had promised to do, although she could have completed those if she had not been absent. The manager told the MD that the claimant had “misled” him about the progress she was making. As a result, two days after returning from her absence, the claimant was asked to attend a meeting with her manager and the MD at which she was told that her employment was being terminated because it was “not working out” and her performance was “below par”.

She brought a claim for pregnancy-related discrimination under section 18 of the Equality Act 2010 and argued that her dismissal was automatically unfair because the reason or principal reason for it was her pregnancy. The Tribunal found that she was dismissed for performance reasons and that the reason or principal reason for her dismissal was not her pregnancy. Her automatic unfair dismissal claim therefore failed.

However, the Tribunal did find that she had been subjected to pregnancy discrimination. This was on the basis that when her manager told the MD that the claimant’s employment was unsustainable, the claimant’s pregnancy had significantly influenced her view. The MD reached his decision to dismiss based on the discussion with the manager.

The employer appealed the finding of pregnancy discrimination to the Employment Appeal Tribunal and the EAT re-examined the Tribunal’s decision. It found that:

  • while in whistleblowing cases corrupted information provided to decision-maker could, in certain circumstances be attributed to that decision-maker;
  • that approach does not apply to discrimination claims where the discriminatory reason must be in the mind of the decision-maker, not in the mind of someone influencing the decision-maker.

Accordingly, it remitted the case to the Employment Tribunal to consider the reason that operated in the mind of the decision-maker, the MD, when he dismissed the claimant.

A claimant in this situation could bring a claim against whoever had the discriminatory motivation in respect of their actions. In this case, the claim would be against the manager who suggested to the MD that he had been misled by the claimant. The claimant could contend that those actions had a significant influence on her eventual dismissal, and so assert that the losses resulting from her dismissal flowed from that detrimental treatment by the manager.

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