Case update: Importance of decision-makers in discrimination dismissal cases
The Employment Appeal Tribunal case of Alcedo Orange Ltd v Mrs G Ferridge-Gunn highlights the importance of identifying exactly which person(s) took the decision to dismiss an employee where there are allegations of discrimination. The Employment Tribunal's failure to grapple with this point meant the case was remitted back to the Employment Tribunal to consider in full.
Background
An employee informed her employer she was pregnant and, eight days later, was dismissed.
The employee brought a claim for unfair dismissal on the basis of pregnancy discrimination under the Equality Act 2010.
The Employment Tribunal found in her favour, but the decision was appealed on the basis that the Employment Tribunal had not been referred to the Court of Appeal case of Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 and therefore had not grappled with the question of exactly who had taken the decision to dismiss and whether they "were motivated to some extent by the protected characteristic of the claimant."
Key points from the Employment Tribunal Decision
The Employment Appeal Tribunal allowed the appeal and remitted the case back to the Employment Tribunal to consider in full in line with the Reynolds case.
To succeed in a claim of pregnancy discrimination, there must have been a discriminator (or discriminators); a person (or persons) who decided to dismiss the employee who were influenced by the employee's pregnancy.
The Employment Tribunal in this case should have answered the apparently simple question: why was the claimant dismissed? Did the claimant's pregnancy have a material influence on the decision-maker or decision-makers?
The Employment Tribunal should therefore have considered, and set out clearly in its judgment, who made the decision to dismiss and, if more than one person was involved in the decision making process, what their roles were.
Takeaways for employers
- Employers should have in place clear, fair and accessible policies and processes for dealing with disciplinary and performance issues.
- Good records should always be kept of how managers and HR deal with particular issues under those policies and processes, such as dismissal of an employee. In light of this case, it's important to ensure it is clear in those records exactly who has taken decisions leading up to a dismissal and their reasons.
- Regular training should be provided to managers and HR on issues such as discrimination and harassment.
