In the case of Alcedo Orange Ltd v Ferridge-Gunn, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal was wrong to find that a pregnant employee’s dismissal was discriminatory when it had not made clear findings as to whether the decision to dismiss was made by one decision-maker, one decision-maker influenced by others, or a fully joint decision.
Mrs Ferridge-Gunn (the Claimant) was employed by Alcedo Orange Ltd as a recruitment manager for staff for care homes. Approximately three weeks after starting work, the Claimant informed her manager she was pregnant.
Both before and after she notified the manager of her pregnancy, various performance concerns were raised with the Claimant. On meeting with her manager and the managing director, the Claimant was put on a performance improvement plan.
When the Claimant was absent for two days with morning sickness, her manager found that the Claimant had not processed some documents as promised (which she could have completed if she had not been off sick). Her manager subsequently informed the managing director that the Claimant had “misled” him about the progress she had made.
When the Claimant returned from sick leave, her manager was unsympathetic and reportedly questioned why she needed this time off for morning sickness. The next day, 27 February 2020, the Claimant’s employment was terminated by reason of poor performance. This was eight days after she had announced that she was pregnant. Her subsequent grievance was not upheld.
The Claimant claimed that she had been discriminated against by reason of her pregnancy and argued that her dismissal was automatically unfair because the reason or principal reason for it was her pregnancy. The Respondent’s case was that she had not been dismissed because of her pregnancy or for a reason connected with it but due to her poor performance and because she was not meeting her set targets. In addition, the Respondent reported the Claimant would not listen to advice offered during her training, was not a good “fit” for the company and was rude to her colleagues.
Under section 18(2) of the Equality Act 2010, "a person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably:-
a) because of the pregnancy, or
b) because of illness suffered by her as a result of it".
Under section 99 of the Employment Rights Act 1996, a dismissal is automatically unfair if it is for a reason connected with pregnancy. No period of qualifying service is needed unlike an "ordinary" unfair dismissal claim where two years' service is required.
Employment Tribunal decision
The Employment Tribunal found that the Claimant had not shown that the pregnancy or a reason connected with it was the principal reason for her dismissal. It was her general performance and a failure to comply with the Respondent’s processes and procedures together with her attitude towards others who offered help that were the principal reasons for the dismissal. Accordingly, she was not automatically unfairly dismissed.
However, the Employment Tribunal upheld the claim of pregnancy discrimination. It found that the Claimant’s manager was influenced by the Claimant’s pregnancy when suggesting to the managing director that the Claimant had ‘misled’ him.
The manager’s view was that the Claimant could not continue in her role and the pregnancy was a significant influence upon the manager’s view. The Employment Tribunal held that the Claimant had successfully shown facts from which it could be shown that the decision to dismiss her was because of her pregnancy or a pregnancy-related absence.
The Employment Tribunal was not referred to the 2015 Court of Appeal decision in Reynolds v CLFIS, UK Ltd where it was held that liability for a discriminatory dismissal can only arise where the employee who carried out the discriminatory act was motivated by the protected characteristic of the dismissed employee. An act cannot be discriminatory on the basis of someone else’s motivation but who may have influenced the decision-maker. In Reynolds, it was held that the correct approach was to treat the conduct of the person supplying the information as a separate act from that of the person who acts on it.
Employment Appeal Tribunal decision
The Respondent appealed the finding of pregnancy discrimination.
The appeal raised issues about decision-makers and reasons. Did the Claimant’s pregnancy have a material influence on the decision-maker or decision-makers?
The appeal was allowed. The EAT found that the Employment Tribunal’s failure to analyse the case in accordance with the principles set out in Reynolds rendered its decision unsafe. The decision was not sufficient for the managing director to know whether or, if so, why he was found to have discriminated against the Claimant.
The case has been remitted back to the same Employment Tribunal to analyse what was in the mind of the decision-maker when he dismissed the Claimant. The EAT commented that it will be for the Employment Tribunal to assess whether it needs to hear any further evidence and further submissions based on Reynolds. In addition, it will be open to the Claimant to apply for permission to amend her claim to bring a separate complaint in respect of the manager’s actions.
The decision reiterates that in discrimination cases, it is essential to clearly determine who is the decision-maker. The discriminatory reason must be in the decision-maker’s mind and not in someone else’s mind but who is influencing the decision-maker. This is different to whistleblowing cases as evidenced by the 2020 decision of the Supreme Court in Royal Mail Group Ltd v Jhuti. In that case it was held that corrupted/tainted information provided to a decision-maker,delete space could, depending on the circumstances, be attributed to the decision-maker.
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