Employees have legal protection from being treated unfavourably (unfavourable treatment ) or dismissed (unfair dismissal ) because they are pregnant or have taken up their maternity rights. Women on maternity leave have special protection if they are affected by redundancy (redundancy). A woman who is dismissed while she is pregnant or on maternity leave must be given written reasons for her dismissal (written reasons ). There is special protection for the pay of women who are given notice of dismissal while on maternity leave (pay during notice ).
The Employment Rights Act 1996 makes it unlawful for an employer to penalise an employee in any way or put her at any disadvantage in the workplace because of her pregnancy or maternity. In particular, it is unlawful to discipline a woman for failing to return to work on time if the employer did not confirm to her when her leave was due to end (confirmation of return date ) and the employee reasonably believed that her leave had not ended, or if the employer gave her less than 28 days' notice of the date on which her leave would end and it was not reasonably practicable for her to return on the due date.
Treating a woman unfavourably on the grounds of pregnancy or maternity is also automatically unlawful sex discrimination, contrary to the Sex Discrimination Act 1975. For example, it would be unlawful for an employer to:
- reject a job applicant because she was pregnant; or
- refuse to train or promote an employee because she would need to take maternity leave; or
- leave a woman out of a redundancy or other consultation exercise because she was on maternity leave.
An employee who is pregnant can be dismissed for good reason in the same way as any other employee, although, if the employee has at least one year's service, the employer most follow a reasonable procedure, including following the statutory minimum procedure, ( minimum dismissal procedure ) where it applies, before dismissing her in order to avoid liability for an unfair dismissal. It is automatically unfair, however, to dismiss a woman for reasons connected with her pregnancy or maternity, regardless of her length of service before or during her maternity leave. This means that it is unfair to dismiss a woman for a pregnancy-related sickness absence.
It is also automatically unfair to dismiss a woman for failing to return to work on time if the employer did not confirm to her when her leave was due to end (confirmation of return date ) and the employee reasonably believed that her leave had not ended, or if the employer gave her less than 28 days' notice of the date on which her leave would end and it was not reasonably practicable for her to return on the due date.
It is also automatically sex discrimination to dismiss a woman for reasons relating to her pregnancy or maternity. For example, it would be sex discrimination, as well as unfair dismissal, to dismiss a woman for a poor attendance record on the basis of pregnancy-related absences during her pregnancy.
An employee's automatic protection from sex discrimination ends at the end of her maternity leave. It is not, therefore, sex discrimination for an employer to dismiss a woman for an unacceptable level of sickness absence after maternity leave, even if the absence is due to a pregnancy or childbirth-related illness, provided the employer has left out of account any such absences the employee had during her pregnancy and maternity leave, and treated her as it would any other employee with the same level of sickness absence.
If a woman is selected for redundancy for reasons relating to her pregnancy and maternity, that automatically amounts to sex discrimination and unfair dismissal, regardless of her length of service. For example, if an employer is selecting employees for redundancy on the basis of attendance record, it should ensure that it leaves out of account any absences for pregnancy-related reasons, including pregnancy-related illness, and any periods of maternity leave.
In any redundancy situation, employers should routinely consider redeployment as an alternative to redundancy, in order to avoid unfair dismissal (considering alternative employment). However, women on maternity leave have special rights to be redeployed. Where it is impracticable to continue to employ a woman on maternity leave because of redundancy, she must be offered any suitable alternative work that is available with her employer or any associated employer (change of employer ). The offer must be made before the end of the employee's original contract, and the new contract must take effect immediately, and on terms and conditions that are broadly similar to those of her original contract. If suitable alternative work is available but is not offered to the employee, her dismissal will be automatically unfair, regardless of her length of service.
Like any other employee dismissed for redundancy, an employee who is made redundant while pregnant or on maternity leave is entitled to complain of unfair dismissal if the employer does not act reasonably in handling the redundancy (consultation and fairness ). The employer should therefore ensure that it has chosen and applied objective selection criteria, warned and consulted with the employee, and considered whether it has any other work it can offer her, whether or not that work is objectively suitable for her. If the redundancy exercise involves fewer than 20 redundancies, the employer will also need to ensure that it has met the requirements of the statutory minimum dismissal procedure ( minimum dismissal procedure ) by writing a letter, holding a meeting with the employee at which she has the right to be accompanied, and allowing her the right to appeal against dismissal.
Weeks when the employee is on maternity leave and receiving no pay or less than her normal pay are discounted when calculating the size of her statutory redundancy payment (payment calculation ). However, if an employee has been offered suitable alternative employment and has unreasonably refused it, she loses her right to a redundancy payment (unreasonably refusing alternative work ).
If an employee is dismissed while she is pregnant or during her maternity leave, she must be given written reasons for her dismissal, regardless of her length of service and even if she does not ask for the reasons. (This right usually applies only to employees who have at least one year's continuous service and have asked for written reasons for their dismissal.)
An employee who is dismissed or resigns with notice while on maternity leave may have the right to be paid her usual pay during her period of notice. This is the case even if that falls during a time when she would otherwise be receiving less than her full pay or no pay at all. Employees have this right if they are entitled to no more than six days more than the minimum notice of dismissal required by the Employment Rights Act 1996 (minimum notice periods ). The minimum notice by the employer is, broadly speaking, one week for each year that the employee has been employed, up to a maximum of 12 weeks. The employee has to give one week of notice.