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Discrimination: Employment tribunals must establish who the decision makers are in determining claims

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By Hilary Larter, Ceri Fuller & Zoe Wigan


Published 08 June 2023


The EAT has held that a tribunal failed to consider whether a business owner was the sole decision maker in the decision to dismiss a pregnant employee.


Case law has established that acts can only be discriminatory if the person doing the act was motivated by the employee's protected characteristic.  A dismissal or disciplinary sanction will not be discriminatory unless the protected characteristic had a material influence on the decision maker (or makers). An act cannot be discriminatory on the basis of someone else's motivation. 

Mrs Ferridge-Gunn was employed by Alcedo Orange Ltd.  Soon after her employment began, she met with Mr Boardman, the managing director of the company, and Ms Caunt, her line manager. They gave Mrs Ferridge-Gunn some advice about their concerns with her performance. 

The next week, Mrs Ferridge-Gunn told Mrs Caunt that she was pregnant. They met again a couple of weeks later. It was thought that there had been some improvement but that there were still issues with her attitude.

Mrs Ferridge-Gunn had morning sickness and took two days' sick leave. While Mrs Ferridge-Gunn was absent, Mrs Caunt found that she had not processed some documents. She told Mr Boardman that Mrs Ferridge-Gunn had misled him by telling them that she had made progress. Mrs Ferridge-Gunn's failure to process the documents had actually been because of her morning sickness, so this was an unfounded allegation. 

When Mrs Ferridge-Gunn came back from sick leave, Ms Caunt was unsympathetic, using words such as: ''is it a virus'', ''is it contagious", ''how much time off are you going to need for this?", ''sorry to be unsympathetic, but I've never been pregnant before'' and ''stop faffing" and "go home''.

The next day, Mrs Ferridge-Gunn's employment was terminated, allegedly for performance reasons. This was eight days after she had announced that she was pregnant.

Mrs Ferridge-Gunn claimed that she had suffered pregnancy discrimination.  Alcedo Orange's case was that she had been dismissed because they were dissatisfied with her performance, that she did not meet the targets set for her, that she was not receptive to advice and training and was not a good 'fit' for the company.

The tribunal upheld Mrs Ferridge-Gunn's claim. It considered that, as the owner of the business, Mr Boardman was the final decision-maker but that, in taking the decision, he had relied on Ms Caunt's incorrect view that Mrs Ferridge-Gunn had misled him.

The company appealed to the EAT. It argued that the tribunal had erred by failing to separate Mr Boardman's role, as decision maker, from that of Mrs Caunt who had provided information to him, and that it had failed properly to identify or consider the reason  Mr Boardman decided to dismiss her. 

The EAT upheld the appeal, holding that this case cried out for an analysis of whether this was a decision by a sole decision maker, a decision by a sole decision maker influenced by others, or a joint decision, and that the tribunal had not conducted this analysis. The case was remitted to the employment tribunal. 


This case does not change the law. However, it is a useful reminder that, where an employee is dismissed soon after announcing that they are pregnant, the timing may provide compelling support for an inference of discrimination. Employers who are contemplating action in relation to pregnant employees should be aware of the risk of claims and, before a decision is taken, carefully analyse whether the pregnancy has anything to do with the decision.  

Alcedo Orange Limited v Mrs G Ferridge-Gunn