When considering claims of discrimination dismissal, tribunals must determine who took the decision to dismiss the worker. In Alcedo Orange Ltd v Ferridge-Gunn, the Employment Appeal Tribunal (EAT) held that as the tribunal had not done that, it had to reconsider whether the managing director could be held liable for an act of discrimination as a result of corrupted information given to him by another manager.
Basic facts
Ms Ferridge-Gunn started work on 27 January 2020, subject to a probationary period of 12 weeks. At a meeting on 14 February with Ms Caunt, her manager and Mr Boardman, the managing director (MD), she was told there were concerns about her work. By the second meeting on 21 February, she was told she had improved, although there were still some concerns about her attitude. She said that she also felt she was improving.
On 19 February, Ms Ferridge-Gunn told Ms Caunt that she was pregnant. When she returned to work after two days’ absence with morning sickness on 24 and 25 February, Ms Caunt asked: ''is it a virus'', ''is it contagious" and ''how much time off are you going to need for this?”.
During her absence, Ms Caunt found that Ms Ferridge-Gunn had failed to upload certain documents to the system. Reporting this to Mr Boardman, Ms Caunt commented that she had not improved after all. At a further meeting on 27 February with the MD and her manager, Ms Ferridge-Gunn was told that her employment was being terminated because it was “not working out” and her performance was “below par”.
She lodged tribunal proceedings for pregnancy discrimination under section 18 of the Equality Act 2010 and automatically unfair dismissal. The company argued that she had been dismissed because of her poor performance and a failure to meet the targets set for her. It also said that she was not receptive to advice and training and, overall, was not a good “fit”.
Tribunal decision
Upholding her claim of pregnancy discrimination, the tribunal found that very little had changed since the meeting on 21 February when Mr Boardman claimed he was satisfied with her progress.
It was clear, therefore, that her absence on 24 and 25 February, her failure to upload some documents (which she would have done had she been able to attend work) and her attendance at an antenatal appointment on 26 February had changed his view, all factors significantly influenced by her pregnancy. Although the final decision was his as the owner of the business, he had relied heavily on his discussions with Ms Caunt.
The tribunal rejected her claim of automatically unfair dismissal, however, finding that although her pregnancy was a significant influence, it was not the principal reason. Instead, it was the result of her general performance and attitude towards her colleagues.
The company appealed, arguing that the tribunal had failed to separate the role of Mr Boardman, the decision-maker, from that of Ms Caunt who provided what turned out to be incorrect information to him about the reason for Ms Ferridge-Gunn’s failure to upload the documents.
EAT decision
The EAT noted that the tribunal had not been referred to the decision in CLFIS v Reynolds (LELR 424) in which it was held that an employer cannot be liable for an act of discrimination as a result of corrupted information given to them by another employee.
As Ms Ferridge-Gunn was clearly asserting that Ms Caunt had a significant influence on the eventual decision to dismiss, the tribunal should have analysed whether the decision was taken solely by Mr Boardman or jointly with Ms Caunt. Given that it did not do so, the decision could not stand.
The EAT, therefore, remitted the matter to the same tribunal to re-determine the pregnancy discrimination claim.