An employee who worked at the bar in a restaurant was dismissed by reason of redundancy. The dismissal took effect shortly after the employee’s manager found out that the employee was pregnant. The employee brought a claim for discrimination (she did not have the required year’s service to claim unfair dismissal), arguing that there was no genuine redundancy situation and that the unfairness of the redundancy process and the short period of time between her employer finding out she was pregnant and her dismissal showed that the real reason for her dismissal was her pregnancy.
The Employment Tribunal found that the employer had, as part of its redundancy scoring exercise, mistakenly included pregnancy-related absence days in its calculations. The employer had also failed to respond to the statutory discrimination questionnaire within the prescribed time limit, and had failed to respond to a letter from the employee requesting written reasons for her dismissal. The employee argued that when one took into account the deficiencies of the employer’s procedures and errors in carrying them out, together with the proximity in time of the announcement of the employee’s pregnancy and the dismissal, the inevitable inference was that the true reason for dismissal was the fact of the employee’s pregnancy.
However, the Employment Tribunal disagreed. It held that although there was minimal documentation vouching the redundancy situation, that fact did not prevent it from concluding that there was a genuine redundancy situation. Further, despite the errors of the employer, it was clear to the Tribunal that the real reason for the employee’s dismissal was redundancy, and not her pregnancy. Key to the Tribunal’s decision was its finding that the review of the employees and the posting of a notice calling all the bar staff to a meeting to discuss possible redundancies had taken place prior to the employer learning of the employee’s pregnancy. In the circumstances therefore, the Tribunal was satisfied that the employee had not established a prima facie case of discrimination, and the burden of proof did not transfer to the employer requiring it to demonstrate an adequate explanation for the potentially discriminatory treatment.
The employee appealed to the Employment Appeal Tribunal. She argued that the Tribunal had erred in law in its approach to the burden of proof. The Tribunal, she argued, had made no reference to there having been a tardy response to the questionnaire, and it had insufficiently examined the selection of the employee for redundancy when commonly a Tribunal examining an employer’s explanation would re-score a selection exercise rather than merely accept an employer’s scoring. The Employment Appeal Tribunal emphatically rejected these arguments. It held that the employee could not hope to show that she had been dismissed or selected for redundancy for her pregnancy unless she could show (a) there was no genuine redundancy and (b) the criteria for redundancy lacked proper objectivity; or (c) the scoring of the matrix was itself not objective, but was influenced by pregnancy. It was not sufficient for her simply to establish that she was dismissed and was pregnant to the knowledge of the employer. Given that the Tribunal had found that the commencement of the redundancy exercise pre-dated the announcement of the employee’s pregnancy, there was no scope for even considering whether factors such as the late response to the questionnaire should be used to draw an inference that the redundancy was a sham. The Tribunal was entitled to come to the conclusion it did as to what inferences to draw (and accordingly what inferences not to draw).
Employers are often very reluctant to dismiss pregnant employees, fearing discrimination claims. However, there is nothing in law which gives complete immunity to pregnant employees. This case demonstrates that the law requires more than the mere fact of pregnancy and dismissal before finding that the two are connected. Where an employer can demonstrate that there is a genuine reason for dismissal, and that (in a redundancy case) the selection for redundancy is not related to the pregnancy, there ought to be no room for any inferences to the contrary. Whilst most discrimination claims turn on inferences of some description, employers can help themselves by having their documentation in order so that the importance of inference is decreased.