Discrimination: The Importance of the Date of a Decision

The Employment Appeal Tribunal (EAT) has recently considered what should happen when an employer decides to dismiss an employee and then subsequently discovers that the employee is pregnant prior to the actual date of dismissal.

In Really Easy Car Credit Ltd vs Thompson the EAT said the important question is whether the decision to dismiss was made because of the pregnancy. Mrs Thompson was dismissed during her probationary period. Her employers said they were unhappy with her performance and conduct. Mrs Thompson argued that they had lied and that it was as a result of the pregnancy. The Employment Tribunal said that the dismissal was automatically unfair because Mrs Thompson was pregnant. Once the employer knew about the pregnancy it was obvious the issues that had triggered the dismissal were related.

The EAT rejected this reasoning on appeal. The EAT said that if the employer did not know of the pregnancy it could be not be a discriminatory decision.

It is therefore clear that if an employer wants to protect itself against a claim for discrimination, its internal notes of the decision making process should reflect all of the facts upon which it proposed to rely, and also the facts of which it was aware. That would be contemporaneous evidence to show that there was no discrimination applied.

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