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Recent EAT decision means employers should take extra care when dismissing employees within first two years of employment

View profile for Susan Mayall
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A recent decision from the Employment Appeal Tribunal indicates that employers need to take extra steps when considering the dismissal of pregnant employees before they accrue the two years required to enable an employee to issue a claim at a tribunal, even if the pregnancy becomes known after the decision to dismiss but before the dismissal itself occurs.

What happened?

Really Easy Car Credit Limited (“RECC”) made the decision to dismiss their employee, Mrs Thompson, citing their unhappiness with her job performance and conduct. Mrs Thompson claimed that the reason for her dismissal was due to her pregnancy, and claimed that the company knew about her pregnancy before the decision to dismiss was made, and that there was a connection between her pregnancy and the dismissal.

The tribunal agreed with Mrs Thompson and accepted her view that her dismissal and the pregnancy were related. The Employment Appeal Tribunal disagreed with the decision and stated that RECC did not have knowledge of the pregnancy before the decision to dismiss was made. Nonetheless, the case was remitted to the tribunal to consider whether the directors re-examined their decision after they learned of the pregnancy, which might allow Mrs Thompson’s original claim to succeed.

How this affects employers

It is important for employers to be aware that there are circumstances in which employees do not need to have accrued two years’ service with the company to bring an unfair dismissal claim. If it is found that there is a connection between the dismissal and one of the protected characteristics, then a claim may still be brought.

The protected characteristics include:

  • Pregnancy or new motherhood
  • Disability
  • Marriage and civil partnership
  • Age
  • Race
  • Religion
  • Gender reassignment
  • Sexual orientation

Employees who believe that they have been dismissed for making a whistleblowing complaint, or if they believe their dismissal is connected to their whistleblowing, may also make a claim for unfair dismissal, even before they accrue the two years required to enable an employee to issue a claim at a tribunal.

The complaints in question may include:

  • Health and safety issues
  • Environmental damage
  • Criminal activities
  • Miscarriages of justice
  • A failure to meet legal obligations
  • Concealment of any of the above

A whistleblower may be protected even in circumstances where these issues may not have occurred, but they reasonably believe that they are likely to occur.

Employers should also be aware that the abolishment of employment tribunal fees and the improved access to justice for employees has seen a rise in employment tribunal claims.

What can employers do?

It is important that employers do not hastily dismiss employees based on the fact that they have not accrued two years’ service with the company. Employers are advised to follow the ACAS code of practice for all dismissals.

Employers should be sure to record comments regarding poor workmanship, and timekeeping is recorded, and notes should be detailed enough to evidence a genuine reason for dismissal and that the reason falls within one of the fair reasons for dismissal.

If an incident occurs where there may be one of the issues raised above, for instance, new knowledge of a pregnancy, or any of the other protected characteristics, legal advice should be sought at an early stage to ensure that the employer is acting fairly and reasonably in the circumstances.

Contact

To discuss any of the issues raised above relating to the dismissal of employees, contact Susan Mayall on 0161 684 6948 or make an enquiry.

Sources

The Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (the 2013 order)

Really Easy Car Credit Ltd v Miss A Thompson: UKEAT/0197/17/DA

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.