Employment Tribunal found to have erred in failing to identify the sole or joint decision maker in a pregnancy discrimination dismissal

In the matter of Alcedo Orange Ltd v Ferridge-Gunn [2023], the Employment Appeal Tribunal (EAT) has held that an employment tribunal was wrong in finding that a pregnant employee's dismissal was discriminatory when it had not made clear findings as to whether the managing director/business owner decided to dismiss her alone or acting jointly with the employee's line manager. Therefore, whether the decision was motivated by the employee's pregnancy.

Approximately two weeks after the Claimant, Ms Ferridge-Gunn, started employment as a recruitment manager for care home staff, performance concerns were raised by her line manager, Ms Caunt, and the managing director, Mr Boardman. The following week, the Claimant informed Ms Caunt of her pregnancy. At a follow-up meeting two days later, some performance improvement was noted, although concerns remained. The Claimant thereafter took two days' sick leave for morning sickness, when Ms Caunt discovered that she had failed to process certain documents in relation to new staff. Ms Caunt informed Mr Boardman that the Claimant had misled him about her performance. However, it transpired that this was unfounded as her failure to complete the work was due to her sickness absence. Upon the Claimant’s return to work, Ms Caunt was unsympathetic, asking whether morning sickness was ‘contagious’ and how much more time off she would need. The following day the Claimant’s employment was terminated because “it was not working out” and her performance was “below par”. The Claimant argued that Ms Caunt had a significant influence over her termination.

The employment tribunal upheld a claim of pregnancy discrimination contrary to the Equality Act 2010 as the Claimant had established facts from which it could be shown that the decision to dismiss was because of her pregnancy and the employer could not show that the pregnancy was “in no sense whatsoever” the reason for the dismissal. The employment tribunal found that Ms Caunt was influenced by the Claimant’s pregnancy when suggesting to Mr Boardman that the Claimant had misled him and that this was a significant factor in the decision to dismiss. The tribunal was not referred to the Court of Appeal's decision in Reynolds v CLFIS (UK) Ltd [2015] where it was held that liability for discrimination can only attach to an employer where an employee has carried out a discriminatory act. In other words, the employee who did the act must actually have been motivated by the protected characteristic; an act cannot be discriminatory on the basis of someone else's motivation.

The Claimant appealed to the EAT which held that it was clear the Claimant who represented herself, was asserting that Ms Caunt had a significant influence on the eventual decision to dismiss. This was a significant decision, and the case required an analysis of whether this was a decision by a sole decision-maker, a sole decision-maker influenced by others or a joint decision. The employment tribunal's failure to analyse other relevant case law therefore made its decision unsafe. The claim was remitted back to the employment tribunal to consider afresh, and it was open to the Claimant to apply to amend her claim to bring a separate complaint about Ms Caunt's actions.

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