In the Employment Appeal Tribunal case of Really Easy Car Credit Limited v Thompson the EAT held that it was an error of law by the Employment Tribunal to find the Respondent discriminated against the Claimant by failing to consider its decision to dismiss her once it had learned of the fact of her pregnancy.
The factual background
Ms Thompson commenced employment with Really Easy Car Credit Ltd (“RECC”) on 20 June 2016 as a telesales operator; RECC is a small family owned business which sells second hand cars.
On 15 July 2016 Mr Mate, a director of RECC, sent Ms Thompson an email confirming that he was happy with her work and that he thought she was doing a “great job”. She took cigarette breaks and was told that they were too frequent, so she reduced the number of breaks.
Ms Thompson discovered that she was pregnant in the week commencing 25 July 2016. On Saturday 30 July 2016 she began to experiences pains, and these pains continued in to Sunday and Monday. On Tuesday 2 August 2016 she sent a text to Mr Mate confirming that she was suffering from pains and asking to take a days’ holiday as she was attending hospital. Mr Mate replied that this wasn’t a problem and not to worry about work. Mr Crawford, who is one of the owners, took the view, however, that this was the last straw, that she should have gone to hospital earlier, and that she should not have waited until she was due back at work. He wanted to terminate Ms Thompson’s employment there and then but was talked out of it by the other owners.
On 3 August 2016 Ms Thompson turned up for work. There was an incident when Ms Thompson spoke to a customer – she was emotional from her hospital visit and she became upset after Mr Fullerton (whose duties included human resources) spoke to her. Ms Thompson went home after this. That afternoon, the business’ owners/directors had a further conversation about Ms Thompson and decided that she should be dismissed due to her “emotional volatility”, her poor performance, and her poor conduct. A letter was drafted by Mr Fullerton that day confirming that she would be dismissed, but was not posted right away (as he felt that it should be given by hand to Ms Thompson when she returned to work).
On 4 August 2016 Mr Fullerton called Ms Thompson to say that she would return to work the next day. She informed Mr Fullerton that she was pregnant in this telephone conversation. Mr Fullerton then reported this information to Mr Mate, who told him to speak to their lawyers.
On 5 August 2016 Ms Thompson returned to work. Upon attending work she was approached by Mr Fullerton, who handed her the prepared letter. This letter stated that her employment was being terminated with immediate effect because of her performance (during her probation period). Mr Fullerton confirmed this verbally.
The decision of the Employment Tribunal
The Employment Tribunal upheld Ms Thompson’s claims for pregnancy and maternity discrimination and automatic unfair dismissal, holding that by delaying the decision to dismiss her from 3 August 2016 (when the RECC directors didn’t know that she was pregnant) to 5 August 2016 (when they did know she was pregnant) the company had failed to convince the Tribunal that her dismissal was in no way related to her pregnancy.
Our analysis of the decision in the Employment Tribunal case of Thompson v Really Easy Car Credit Ltd can be found here.
RECC appealed the decision of the Employment Tribunal.
The decision of the Employment Appeal Tribunal
The Employment Appeal Tribunal (“EAT”) upheld RECC’s appeal, holding that the Tribunal had misapplied the law – it had misapplied the burden of proof and imposed a positive obligation on RECC to take a further decision as to whether to dismiss Ms Thompson once it had learned of her pregnancy (which was not the correct approach by law – it was settled law in Del Monte that in determining the reason for dismissal there was no positive obligation for the employer to revisit its decision to dismiss (which had been made prior to them having knowledge of her pregnancy) once it had learned of her pregnancy. The reason (or principal reason) for her dismissal was not because of her pregnancy but because of her performance, conduct, and “emotional volatility”.
The EAT remitted the matter to a different Employment Tribunal for a decision on what took place after Ms Thompson notified RECC of her pregnancy (on 4 August 2016).
Our solicitors’ view on Really Easy Car Credit Limited v Thompson
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case (again) demonstrates that the critical issue that an Employment Tribunal must examine is the reason for the dismissal – in most cases if a decision to dismiss is made before an employee notifies her employer of her pregnancy then it may be difficult for the employee to show she was dismissed because of her pregnancy.”
The Employment Appeal Tribunal judgment can be found here