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Discrimination: Date of Decision

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How should we approach a case where an employer decides to dismiss an employee without knowing they are pregnant, but finds out before the dismissal takes effect?

The EAT held, in Really Easy Car Credit Limited v Thompson, that the key question is whether the decision was made because of the pregnancy.

Mrs Thompson was dismissed during her probationary period. RECC said they were unhappy with her performance and conduct. Mrs Thompson argued it was because of her pregnancy. She said RECC lied about when the decision to made, to give the impression it happened before she told them of her pregnancy.

This factual account was rejected. But the tribunal still found dismissal was automatically unfair and an act of pregnancy discrimination. Once RECC knew about the pregnancy it was obvious the issues that had trigged the dismissal were related.

The EAT rejected this reasoning. The decision to dismiss couldn't have been because of the pregnancy, when RECC knew nothing about it at that time. Nonetheless, the case was remitted to the tribunal to consider whether the directors reexamined their decision after they learned of the pregnancy. A reexamination that was based on Mrs Thompson's pregnancy might allow her claim to succeed.

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary.