The EAT has considered the issue of how to approach a case where an employer decides to dismiss an employee without knowing that she is pregnant, but then finds out before the dismissal takes effect in Really Easy Car Credit Limited v Thompson.
The claimant was dismissed during her probationary period. Her employer said that it was unhappy with her performance and her conduct, but she claimed that it was because of her pregnancy. She argued that her employer knew of her pregnancy and lied about when it made the decision to dismiss in order to pretend that the decision was taken prior to it having knowledge of the pregnancy. The EAT held that the decision to dismiss was not made because of the pregnancy as the employer did not know about it at the time. However, the case was remitted to the tribunal to consider whether the employer's directors had re-examined their decision after they learned of the pregnancy. A re-examination, based on the claimant's pregnancy, might allow her claim to proceed.
Take note: Following the decision in Thompson, employers may have to revisit decisions to dismiss if, before the dismissal takes effect, it is found that the employee who has been dismissed is pregnant. However, once a dismissal has taken effect, the fact that an employer did not know about the pregnancy at the time should be an adequate defence to any subsequent unfair dismissal claim.
This article is taken from HR Law - April 2018.
