It will amount to unlawful discrimination if an employee is treated unfavourably because of pregnancy or maternity leave. It follows that when considering whether there has been discriminatory conduct, the motivation behind the unfavourable treatment will need to be considered.
In Alcedo Orange v Mrs G Ferridge-Gunn the issue was whether there could be a finding of unlawful discrimination on the basis that the decision maker had been influenced by a line manager who had given false information relating to the employee who was pregnant with the intention that she should be dismissed.
Mrs Ferridge-Gunn had been employed as a recruitment manager at a care home. While in her probationary period she informed her line manager that she was pregnant.
Separately, there had been a number of concerns expressed about her performance and attitude at work, which she had reassured her line manager she had addressed.
During a subsequent absence related to her pregnancy the line manager discovered there had been a failure to process documentation. She reported this to the business owner, falsely stating that Ferridge-Gunn had misled her.
When she returned to work her line manager made several remarks to her about the inconvenience of her pregnancy. The day following this meeting and the disparaging remarks being made Ferridge-Gunn was informed by the owner that she was to be dismissed because of concerns about her performance. She brought a claim that she had been dismissed for pregnancy-related reasons.
The employment tribunal held that the claim succeeded. In reaching this decision it was recognised that the owner of the business would have had the final decision to dismiss, but in taking that decision he would have relied upon the line manager’s unfounded views that Ferridge-Gunn had misled her line manager about her performance improvement.
The line manager's attitude towards her had been influenced by her pregnancy and her absence that was pregnancy related, as was evidenced by the comments made about it being inconvenient.
The employer’s appeal against this decision was upheld. The Employment Appeal Tribunal ruled that there had been a failure to separate the role of the business owner as the decision maker from that of the line manager who had provided information to him. It was only by considering each role that the true reason for the dismissal would be properly identified. It was the mindset and motivation of the decision maker that was vital to establish whether the dismissal amounted to discriminatory conduct.
The decision demonstrates that a dismissal cannot be discriminatory on the basis of someone else’s motivation. This is in contrast to the position in whistleblowing cases, where it has been held that corrupted information provided to a decision maker could, in certain specific circumstances, be attributed to that decision maker when deciding whether the reason for dismissal was automatically unfair.
However, as this case shows, that principle does not apply to discrimination claims as an employer will only be liable where the decision maker has been motivated by the protected characteristic. This will mean that, when considering claims of discrimination, the decision-making process will need to be analysed to assess the motivation of the individual. If the individual making the decision to dismiss was doing so on the basis of false information, it may not be enough to establish discrimination. However, as discrimination claims are possible against the employer and fellow employees there may be grounds for a separate claim against the individual who provided that information.
Benedict Gorner is an employment partner at Gateley Legal