June 16, 2017
Many people think that employees who are pregnant or on maternity leave are completely untouchable in the workplace. But that’s not true.
Employers can still dismiss an employee who is pregnant or on maternity leave as long as the reason is entirely unconnected to her pregnancy or maternity. For example, you may be able to dismiss an employee for stealing company goods or persistent underperformance.
But you need to take care if you are dismissing a pregnant employee for poor performance – you should take into account the impact pregnancy can have on employees when looking at their performance while they are pregnant.
As is always the case, employers need to remember is that there must be a fair reason for the dismissal. You must have followed the correct procedure and have carried it out in a fair way.
If you dismiss an employee who is pregnant or on maternity leave you must provide her with a written statement which clearly explains the reasons for the dismissal. This is regardless of their length of service and whether they have asked for it. It is 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,
this will amount to discrimination.
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.
It is possible to make a pregnant employee or an employee on maternity leave redundant; however, there are certain protections in place.
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. A failure to do this 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 the criteria is fair and non-discriminatory. You cannot select 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 counted. Again, you should think about the impact that pregnancy has on their performance.
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.
If an employee has been continuously employed for two years, they will have the right to statutory redundancy pay.
To discuss this further, contact your Employment Law Adviser for guidance.
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