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Facts: The employee, Mrs Ferridge-Gunn, was employed by Alcedo Orange Ltd. Soon after her employment began, performance concerns were raised with her in a meeting with Mr Boardman, the managing director of the company, and Mrs Caunt, her line manager.
The next week, Mrs Ferridge-Gunn told Mrs Caunt that she was pregnant. A couple of weeks later Mr Boardman and Mrs Caunt again met with Mrs Ferridge-Gunn. They agreed with her that there had been some improvement in her performance, but that there were still some issues with her attitude.
Mrs Ferridge-Gunn took two days’ sick leave for morning sickness, during which time Mrs Caunt discovered that she had failed to process some documents. Mrs Caunt told Mr Boardman that Mrs Ferridge-Gunn had misled him by telling them that she had made progress. However, in fact this was an unfounded allegation as Mrs Ferridge-Gunn’s failure to process the documents was due to her time off for morning sickness.
Mrs Caunt was unsympathetic towards Mrs Ferridge-Gunn on her return from sick leave and questioned if she had a virus or if it was contagious, whilst saying ‘sorry to be unsympathetic, but I’ve never been pregnant before’ and asking ‘how much time off are you going to need for this?’. She also told her to ‘stop faffing’.
Eight days after Mrs Ferridge-Gunn announced she was pregnant, she was dismissed by Mr Boardman for poor performance and not being receptive to advice and training (which took into account that Mrs Ferridge-Gunn had misled him in respect of her performance).
Tribunal decision
The Tribunal upheld Mrs Ferridge-Gunn’s claim of pregnancy discrimination. It found that Mrs Caunt was influenced by her pregnancy when suggesting to Mr Boardman that she had misled him, and that this was a significant factor in the decision to dismiss.
The employer appealed.
EAT decision
The EAT said that the Tribunal had not approached its decision correctly and returned the case for reconsideration.
The EAT said (applying the Court of Appeal case of Reynolds v CLFIS (UK) Limited) that when deciding whether an individual has been dismissed for a discriminatory reason, a Tribunal should only consider the motivation of the decision-maker.
This means that Tribunals need to put their minds to who is the decison-maker. This can be a sole decision-maker, a joint decision, or a sole-decision maker influenced by others. If a sole decision-maker is so heavily influenced by another employee it will become a joint decision. If a sole or joint decision is made with a discriminatory motive (which can be held by either decision maker) it is an act of discrimination. If the other employee is just supplying information or opinion and does not heavily influence the decision-maker, the decision will not be discriminatory.
In this case, if Mrs Caunt heavily influenced Mr Boardman’s decision, they would be joint decision-makers and Mrs Caunt’s motivation would be relevant to whether the decision to dismiss was discriminatory.
Implications:
This is a helpful clarification by the EAT as to how a Tribunal should assess the influence of others on a decision maker in discrimination cases. This contrasts with the position in whistleblowing cases set out by the Supreme Court in Royal Mail Group v Jhuti, when it held that it is possible (albeit in exceptional circumstances) to look behind the motivation of a sole decision-maker and consider the (hidden) influence of other (see our update on this here).
The case is also a good reminder to employers that when decisions are made regarding dismissals, the processes followed should be thorough and transparent. Make clear who the decision maker(s) is, make sure they are not influenced by others with discriminatory motives and get them to set out the reasons and rationale for their decision in clear terms.
Also, do make sure you document all under-performance. If the employer in this case had not documented the performance concerns that occurred before disclosure of the pregnancy, then the EAT outcome could well have tipped the scales in the favour of Mrs Ferridge-Gunn.
Finally, do take care in respect of taking action in relation to pregnant employees. Where action is taken soon after an employee announces they are pregnant (including a decision to dismiss) the timing may provide compelling support for an inference of discrimination. Do be alert to the risk of claims and, before a decision is taken, carefully analyse whether the pregnancy has (or could be perceived as having) anything to do with it and either persuade the decision-maker to change their mind, or be prepared to clearly explain why it is not discriminatory and to back that up with supporting evidence.
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