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Can I dismiss a pregnant employee or new mum?

Many people think that employees who are pregnant or on maternity leave can’t be fired. In reality, this isn’t the case.

Under employment law, employers can still dismiss a pregnant employee or an employee on maternity leave provided the reason is entirely unconnected to their pregnancy or maternity. In other words, you can’t dismiss an employee because they are pregnant or for anything related to their pregnancy, but that doesn’t mean they are exempt from being dismissed for other reasons.

For example, you may be able to dismiss a pregnant employee for stealing or persistent under-performance.

However, it’s important to tread carefully when considering dismissing a pregnant employee for poor performance or because they cannot perform their duties. You should always take into account the impact that pregnancy can have on employees when assessing their performance whilst pregnant.

If you do dismiss a pregnant employee or an employee on maternity leave, you must provide her with a written statement that clearly explains the reasons for the dismissal. 

Fair reasons for dismissing a pregnant employee

Pregnant employees have rights under employment law. This includes the right to paid time off for antenatal appointments, the right to maternity leave and pay, and the right to protection against discrimination.

The latter makes it unlawful for employers to demote a pregnant employee, not hire them, or indeed dismiss them, for reasons related to their pregnancy or for trying to exercise their statutory rights, provided they are able to preform the major functions of their role.

When dismissing any employee, employers must be a fair reason for dismissal. You must also follow the correct procedure and have carried it out in a fair way. This is especially true if you are looking to fire an employee who is pregnant, failing to do so will make the dismissal automatically unfair.

It’s also important that you have clear documentation that confirms the reason for the dismissal, as it’s not uncommon for employers’ motives to be questioned in these scenarios.

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To ensure you stay on the right side of pregnancy employment law, ask yourself: Is the sole or main reason for dismissal:

  • That the employee is pregnant?
  • That she plans to take maternity leave?
  • That she has exercised her statutory right to time off for antenatal appointments?
  • That she is suspended from work due to health and safety concerns?
  • That pregnancy-related illnesses has resulted in lateness or absence?

If so, this will amount to pregnancy and maternity discrimination

‘Pregnancy and maternity’ is one of nine ‘protected characteristics’ outlined in the Equality Act 2010. As such, it is unlawful for an employer to treat someone less favourably because she is pregnant, suffering from a pregnancy-related illness, on compulsory maternity leave, or exercising (or seeking to exercise) any of her statutory rights, such as ordinary and additional maternity leave.

Unfair dismissal and pregnancy

If the primary reason for dismissing an employee is that they are pregnant or on maternity leave, they will have grounds to bring a claim for unfair dismissal, irrespective of their length of service. Given the legal risk involved in these scenarios, it is always safest to seek support from an Employment Law specialist to when dealing with a poor-performing employee who is pregnant, as this will help you to avoid costly mistakes.

Making pregnant employees redundant

It is possible to make a pregnant employee redundant, or to make someone redundant while they are on maternity leave; however, again, pregnant employees have rights and protections that you will need to be aware of.

You must warn all employees of a potential redundancy situation, including those who are on maternity leave or off work with a pregnancy-related sickness, and how it may impact them. Failure to do so comes with a heavy price – it is likely that it would render the process unfair.

When selecting people for redundancy, you should create a scoring criteria; employees in the redundancy pool will receive scores against this list and the employee(s) with the lowest score will be selected for redundancy. It is important to make sure that all criteria are fair and non-discriminatory. This means you cannot select an employee based on the fact they are pregnant, on maternity leave or are exercising their statutory rights. You must also take care when considering an employee’s absence record; absences due to maternity leave or pregnancy should not be counted. Again, you should think about the impact that pregnancy may have had on their performance.

Finally, if you are making someone redundant whilst on maternity leave, the employee must be offered any suitable alternative job vacancy. What’s more, if there is such a role available, pregnancy employment law dictated that you must offer it to the employee on maternity leave, even if there are other colleagues who are more suitable.

Remember, if an employee has been continuously employed for two years, they will have the right to statutory redundancy pay.

In need of advice?

Pregnancy and maternity-related challenges are amongst the most difficult for employers to deal with, and the margin for error is high. If you’re confused about pregnancy employment law or just want expert reassurance, our Employment Law specialists can offer practical advice and support with documentation to help you get it right.

Call 0345 226 8393 to speak to one of our friendly team or use the button opposite to request your free consultation.

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If you dismiss a pregnant employee or an employee on maternity leave, you must provide her with a written statement that clearly explains the reasons for the dismissal. 

Free guide to Maternity Leave and Pay

Discover how to handle issues related to maternity leave

Fair reasons for dismissing a pregnant employee

As is always the case, employers need to remember is that there must be a fair reason for dismissal. You must have followed the correct procedure and have carried it out in a fair way. This is especially true if you are looking to fire an employee who is pregnant.

It’s also important that you have clear documentation that confirms the reason for the dismissal, as there may be some suspicion as to what your motives actually are.

However, if the sole or main reason for the dismissal is, for example,

  • that the employee is pregnant;
  • that she plans to take maternity leave;
  • that she has exercised her statutory right to time off for antenatal appointments;
  • that she is suspended from work due to health and safety concerns; or
  • that pregnancy-related illnesses has resulted in lateness or absence

then this will amount to pregnancy and maternity discrimination. Pregnancy and maternity are “protected characteristics” included in the Equality Act 2010. As such, it is unlawful for an employer to treat someone less favourably because she is pregnant, suffering from a pregnancy-related illness, on compulsory maternity leave, or exercising (or seeking to exercise) any of her statutory rights, such as ordinary and additional maternity leave.

Unfair Dismissal and Pregnancy

Remember, an employee can make a claim for unfair dismissal if the main reason for dismissing them is the fact that she is pregnant or on maternity leave, irrespective of their length of service. This is why it is always a good idea to seek a HR company to ensure that you are on the right track when dealing with a poor-performing employee who is pregnant.

Redundancy

It is possible to make a pregnant employee or an employee on maternity leave redundant; however, there are certain protections in place. You can read more about redundancy here.

You must warn all your employees of a potential redundancy situation, including those who are on maternity leave or off work with a pregnancy-related sickness, and inform them of how it will impact on them. Failure to do so comes with a heavy price – it is likely that it would render the process unfair.

When selecting people for redundancy, you should create a scoring criteria – employees in the redundancy pool will receive scores against this list and the employee(s) with the lowest score will be selected for redundancy. It is important to make sure that all criteria are fair and non-discriminatory. You cannot select an employee based on the fact they are pregnant, on maternity leave or are exercising their statutory rights. You must also take care when considering an employee’s absence record. Absences due to maternity leave or pregnancy should be taken into account. Again, you should think about the impact that pregnancy may have had on their performance.

Suitable alternatives

If selected for redundancy, an employee on maternity leave must be offered any suitable alternative job vacancy. You must offer this role to the employee on maternity leave even if there are other colleagues who are more suitable for the role.

Remember, if an employee has been continuously employed for two years, they will have the right to statutory redundancy pay.

Dealing with pregnancy and maternity-related challenges? Speak to an Employment Law Adviser for expert advice and reassurance.

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