Veitch Penny LLP - Exeter | Crediton, Devon

Case

Ramdoolar v Bycity Ltd
Employment Appeal Tribunal - (30 August 2004)

Issues

(1) Automatic unfair dismissal
(2) Reason for dismissal
(3) Maternity and Parental Leave etc Regulations 1999

Facts

Ms Ramdoolar had been employed as an Accounts Assistant from 14th October 2002. She was dismissed on 10th January 2003 and therefore did not have sufficient continuous employment to bring an ordinary unfair dismissal claim.

She initiated an Employment Tribunal on the basis that her dismissal was automatically unfair under Regulation 20 of the Maternity and Parental Leave Regulations 1999 i.e. that her dismissal was for a reason connected with her pregnancy. Such a claim did not require 12 months continuous employment on her part. She submitted that she was diagnosed as pregnant on 15th November 2002 and had told her employer of her pregnancy on that date.

Bycity Ltd argued that she had not in fact told them of her pregnancy and at no time did they know or believe that she was. They submitted that the reason for her dismissal was that she was simply unable or unwilling to perform the routine tasks required of her adequately and had also on occasion been late for work for which she had given an explanation other than pregnancy.

The Tribunal found that, on the balance of probabilities, Ms Ramdoolar had not told the company of her pregnancy on 15th November 2002 or at all. Her complaint was dismissed.

The decision was then appealed to the Employment Appeal Tribunal (EAT).

In her appeal Ms Ramdoolar contended that the original Tribunal had erred in law, as it should have considered whether Bycity Ltd ought to have known, by reason of her symptoms or behaviour, that she had been pregnant.

Decision

The appeal would be dismissed. The suggestion that Bycity Ltd ought to have known by reasons of her symptoms or behaviour that Ms Ramdoolar had been pregnant would have required Bycity to have knowledge of the symptoms of pregnancy and, furthermore, an ability to distinguish between them and the symptoms of other conditions such as illness. The EAT pointed out that if a female employee was repeatedly late for work or performed below standard at certain times of the day (in particularly a morning) then her condition could well be due to pregnancy but it could also be due to other conditions. To take this argument to its logical conclusion would mean that employers would be obliged to undertake enquiries and then to make a judgment about whether or not the issue was due to pregnancy. This would be a difficult decision to make.

The EAT went on to note that making enquiries of employees in this manner may well be viewed as offensive. A female employee may reasonably regard such an enquiry as an intrusion into her private life which may constitute a detriment under Regulation 19. This would leave the employer in an unavoidable dilemma as whatever course of action he took he may well be subject to an Employment Tribunal complaint under either Regulation 19 or Regulation 20.

The EAT concluded that such a burden would be unrealistic particularly given that it is not difficult for an employee, if she wishes, to tell her employer that she is pregnant. Once she does so, if she is then dismissed for a reason connected to her pregnancy then the dismissal would be automatically unfair.

Comments

The EAT added one possible complication to this decision. It noted that it was conceivable that circumstances may arise in which an employer, detecting the symptoms of pregnancy and fearing the consequences if correct, may dismiss the employee before his suspicion can be proved one way or the other. In such circumstances the dismissal may well be automatically unfair. This would have to be judged on a case-by-case basis.