On professional pursuits and pregnancy.

Ms A joined firm X as a trainee lawyer. Her training contract was until 3 January 2018. On 10 October 2017, she informed firm X that she was pregnant. On 2 November 2017, firm X informed her that she would not be offered a post as a qualified lawyer when her training contract ended.

Ms A then brought a claim against firm X. Her position was that firm X had decided to terminate her employment because she was pregnant, and this was discriminatory.

Open and shut? Not quite.

Firm X's position was that by April 2017, its directors had already decided that Ms A would not be retained after 3 January 2018, due to her "limitations". This was before the directors found out that Ms A was pregnant. They did not tell Ms A of their decision at this stage, as they did not want to demotivate her, and were concerned about competition and poaching.

The tribunal held that when the decision was made to terminate Ms A's employment, the directors of firm X did not know that she was pregnant, and her pregnancy did not play a part in the decision to dismiss her. The claim for discrimination therefore failed. The tribunal also ordered Ms A to pay costs to firm X.

For the record, I do not condone dismissing an employee because they are pregnant!¹ My sole observation relates to the importance of proper record-keeping.

There was no documentary evidence of the directors' decision not to retain Ms A. However, before October 2017, the directors had informed various members of staff (in confidence) of the decision. These staff members gave evidence, which the tribunal believed.

I wonder whether parties would have settled if there was documentary evidence that the decision had already been made in April 2017. It need not have been formal - even a short email between the directors along the lines of "[a]s we discussed earlier, we won't retain Ms A" would have served.

If such an email existed, it would have been difficult for Ms A to challenge the time-stamp (showing when the decision had been made), and Ms A may well have decided that it would be in her interests to settle.²

But since there was no settlement, the matter proceeded to a tribunal hearing, which caused both parties to incur time and costs. While firm X was awarded costs, I guarantee that the costs incurred were far in excess of the costs awarded. It is no exaggeration to say that that simple 1-liner email may well have saved firm X a 5-digit sum in costs.

The key take-away? Document your HR decisions, at least informally. As for best practices to adopt when considering dismissal - that's a longer topic for another day.