Employment Appeal Tribunal
HELD: (1) The tribunal had taken a pragmatic approach in applying the principles in O'Neill v St Thomas More School (1996)IRLR 372 in finding that the pregnancy was an effective cause of the disciplinary hearing which had led to the dismissal, and that the pregnancy need not have been the sole cause. In extending the European Court of Justice ruling in Brown v Rentokil Ltd (1998) IRLR 445 sex discrimination existed where the employee was prevented from defending herself at a disciplinary hearing due to absence for pregnancy. The tribunal was entitled to have found that the employee had suffered a detriment for a pregnancy related reason. (2) In assessing special damage the tribunal had correctly applied the loss of chance principle in Ministry of Defence v Cannock (1994) ICR 918. However, the tribunal had applied the test of whether a reasonable employer, instead of whether this employer, would have dismissed the employee for misconduct had she not been pregnant and had attended the disciplinary and appeal hearings. A discriminatory dismissal was akin to the question posed in Polkey v A E Dayton Ltd (1988) ICR 142 and the chances of whether the complainant would have been dismissed had a fair procedure been followed should have been considered. Therefore, the case was remitted for rehearing solely on the assessment of loss of chance of the employee retaining her employment had there been no discrimination.
Appeal on liability dismissed. Appeal on damages allowed and remitted solely on the issue of loss of chance.
 IRLR 222
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