Our Employment team comments on Alcedo Orange Limited v Ferridge-Gunn.

Facts
Mrs Ferridge-Gunn (FG) worked for Alcedo Orange Limited (AO) as a care home recruitment manager.

On February 19, 2020, during her probationary period, FG informed AO that she was pregnant. She took pregnancy-related leave due to morning sickness on February 24 and
25. AO dismissed FG on February 27, claiming she was dismissed for poor performance.

Employment Tribunal

FG submitted a claim to the ET for pregnancy-related discrimination and automatic unfair dismissal.

The fundamental question for the ET concerning dismissal was whether or not FG was dismissed because of her pregnancy.

FG provided evidence that Ms Caunt, the registered manager, seemingly made negative comments about her pregnancy and her morning sickness. When asked, Ms Caunt had told Mr Boardman, managing director, that FG should not continue in her role.

AO submitted that FG was dismissed fairly because of capability concerns, relying on evidence of meetings where concerns were directly raised with FG as to the need for performance improvement.

AO pointed to examples of poor performance and had stated that FG had misled Mr Boardman during a meeting on February 21. AO gave examples of meetings where poor performance was explored with FG, although it was said in one meeting that FG’s performance was improving.

The ET concluded that FG had not been automatically dismissed. FG had not satisfied the burden of proof to establish that the reason for the dismissal was connected to her pregnancy. It found AO had evidence of FG’s failure to comply with procedures and processes and a failure to engage with advice. Pregnancy was found by the ET to be a significant influence in the dismissal but not the principal reason. As a result, the automatic unfair dismissal claim was dismissed.

However, the ET did not agree with AO concerning FG’s meeting with Mr Boardman. It found that FG would have been able to complete the task which she had agreed to undertake had it not been for her pregnancy-related absence.

The ET did however conclude that FG had been subject to pregnancy discrimination. The tribunal made an inference that pregnancy was a significant influence upon Ms Caunt when she recommended to Mr Boardman that FG should not continue in her role.

Alongside Ms Caunt’s comments, the timing of FG’s dismissal with the notification of pregnancy and the pregnancy-related absence (morning sickness absence and an antenatal appointment), FG successfully showed that in relation to s18 Equality Act 2010 (EA), she had been subject to pregnancy discrimination.

Employment Appeal Tribunal

AO appealed; it argued that there has been a misapplication of s18 EA due to a failure to separate the role of Mr Boardman (the decision-maker) from that of the alleged influence which Ms Caunt had over the decision to dismiss FG.

AO submitted that the ET had failed to properly apply the case of Reynolds v CLFIS (UK) Ltd [2015] ICR 1010; Briefing 749 [2015] which calls for a more direct focus on the mental state of the decision-maker.

The Reynolds case was not brought to the ET’s attention and the EAT found that it should have been.

Reynolds concerned a situation where an act, which is detrimental to a claimant, is done by an employee who is themselves innocent of any discriminatory motivation, but who has been influenced by information or views expressed by another whose motivation is discriminatory (often called ‘tainted information’).

The EAT criticised the ET for not clearly determining who took the decision to dismiss FG. It was not clear whether the dismissal decision was taken by a sole decision-maker or a decision by a sole decision-maker influenced by others, or whether it was a joint decision made by Ms Caunt and Mr Boardman.

AO submitted that Mr Boardman was the sole decision-maker and was unknowingly influenced by Ms Caunt who was the only person with discriminatory motivation. FG submitted that it was a joint decision between both or that Mr Boardman was knowingly influenced.

The EAT did not accept either submission and found the ET’s decision to be unsafe because it did not analyse the case in accordance with the principles set out in Reynolds. The case was remitted back to the same ET.

Implications for practitioners

The EAT’s consideration of the Reynolds case highlighted the potential difficulty in deciphering who the decision-maker is, what they knew at the time they made the decision and whether they were knowingly or unknowingly provided with ‘tainted information’. Often a claimant may not know who the decision-maker really is until the disclosure stage, or indeed at trial itself.

This case illustrates the importance of getting the law right at first instance, to save later cost and time; perhaps, particularly in cases such as these which involve a litigant- in-person.

The case is a reminder of the fact that simply because a detriment or dismissal closely follows a protected act or disclosure of a protected characteristic, the latter is not necessarily caused by the former; claimants will always need to discharge the burden of proof in discrimination claims.

This article was first published in the Discrimination Law Association (DLA) briefings for November 2023 (subscription needed).

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