The claimant had told her employer she was pregnant sometime in early January 2019. On 29 January she was told she was in consultation for redundancy (after an accepted downturn in business at her place of employment) and was dismissed on 1st February. The ET concluded there was insufficient evidence to reverse the burden of proof.

In this appeal, HHJ Tayler allows the appeal and remits for redetermination by a different Employment Tribunal concluding at [25-26]

"25. In this case the Employment Tribunal finally concluded at paragraph 29 that there was nothing in the evidence to shift the burden of proof to the respondent. We cannot see how they could properly have reached that conclusion in circumstances in which, not only was there unfair treatment, it was unfair treatment in circumstances in which the claimant had shortly before informed the respondent of her pregnancy.

1. While the tribunal accepted that there was a genuine downturn in business and a need to save expense, that was not something that, without further analysis, could be relied on to conclude that the burden of proof had not shifted. The Employment Tribunal failed adequately to explain why the facts that it found did not result in a shift in the burden of proof and appears to have concluded the burden did not shift because, to a greater or lesser extent, it took into account, at the first stage of deciding whether there was evidence that could shift the burden of proof, the explanation for that treatment given by the respondent, which is not permitted under the Igen guidance."