A pregnant employee was dismissed for being absent without leave and is referring the case to tribunal for sex discrimination; yet the manager who dismissed provided HR with incorrect information. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

I am currently involved in an appeal from a pregnant employee who was dismissed for gross misconduct as she was absent without leave. She alleged she was being harassed by her line manager, who is also the manager who dismissed.

During my investigation, it transpired that the line manager had told HR the employee had been AWOL for six weeks with no contact and was already on a verbal warning for absence. She failed to mention the employee was pregnant.

In fact, the employee had been absent for 12 days after having called in sick with morning sickness and was not on a verbal warning. She has also supplied sick notes, which the manager responsible claimed not to have received.

The employee has referred the case to tribunal for sex discrimination as she alleges the reason she was dismissed was related to her pregnancy and I was wondering if I should offer to re-engage the employee and/or discipline the manager involved?

Legal advice:

Esther Smith, partner, Thomas Eggar

From the information provided I would certainly suggest that reinstatement would be a sensible move. It does not appear that the dismissal was based on fair grounds and therefore on identifying this issue on appeal, reinstatement should be the appropriate response.

Given that she has brought on a tribunal claim, this act would clearly reduce any losses flowing from an alleged act of sex discrimination. In addition, if the employee rejects the offer of reinstatement, then if she is successful in her claim, this failure to mitigate any losses flowing from the alleged discrimination will count against her, so on all fronts it is worth doing if you can manage it effectively.

With regards to the manager, you may consider whether disciplinary action for providing HR with incorrect information is appropriate. Obviously you would need to investigate this matter in a bit more detail before making a decision as to whether disciplinary is appropriate. It may well be that the manager did not know she was pregnant, or genuinely believed that she was subject to a verbal warning.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

You are in a difficult position because if you admit to the employee what you seem to have discovered, you will very likely be admitting sex discrimination and you will have to consider settling the case.

On the other hand, if you try to avoid admitting it you run the risk of an adverse finding in the tribunal and increased compensation for greater injury to feelings caused by your handling of the case (failing to admit what you have done as the employer and trying to deny the self-evident). Either way, this looks like it will cost you some money.

Since it looks very much as though you have discriminated, the best thing might be to admit that the employee shouldn’t have been dismissed (without using the words ‘sex’ or ‘discrimination’) and reinstate her.

However, the employee may not want reinstatement (will she and the manager be able to work together again?) so be prepared to do a deal with this employee including settling the tribunal claim.

You will have to take this up with the manager whatever else happens and, on the face of it, she should be disciplined.

Martin Brewer can be contacted at: martin.brewer@mills-reeve.com

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