Quite apart from any breach of sex discrimination law which might occur, it is automatically unfair dismissal if an employer dismisses a female employee for reasons connected with her pregnancy or the birth of her child.

In determining whether or not a dismissal is pregnancy related, an Employment Tribunal (ET), as with all judicial bodies, has to act with an open mind and give equal consideration to both sides of the dispute. That regrettably did not happen in one case in which a small family-owned car sales company was accused of discriminating against a telesales operative due to her pregnancy (Really Easy Car Credit Limited v Thompson).

The car sales company sells second-hand cars, advertising heavily online. The woman, who had previous telesales experience, was employed to work alongside two other employees. Her employment was subject to the completion of a three-month probationary period, during which time her contract could be terminated by either side on one week’s notice.

The woman was still within her probationary period when the company decided to terminate her employment owing to her alleged emotional volatility and failure to fit in with the business’s work ethic. Only after that decision was taken did the company’s management discover that she was pregnant. The decision was nevertheless implemented and her employment was terminated.

In upholding her claims of pregnancy discrimination and automatic unfair dismissal, an ET found that the company should have reviewed the dismissal decision after learning of her pregnancy. It must at that stage have been obvious that the emotional behaviour that the company considered to have been the last straw was related to her pregnancy. Those findings were sufficient to reverse the burden of proof against the company and the ET found that it had failed to show that the woman’s dismissal had nothing whatever to do with her pregnancy.

In upholding the company’s challenge to that ruling, the Employment Appeal Tribunal found that the ET had, in effectively finding the company liable by omission, applied the wrong legal test. What the ET had failed to do was determine whether the woman’s pregnancy was the reason, or principal reason, for her dismissal. It had also failed to consider the company’s explanations, or otherwise engage with its case, before proceeding directly from the finding that the burden of proof was reversed to a finding that liability was established. The woman’s case was remitted to a differently constituted ET for fresh consideration.