Important to identify decision-maker in discrimination cases

Background

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.

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.

Comment

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.