Many people think that employees who are pregnant or on maternity leave can't be fired. In reality, this isn't the case.
Employers can still dismiss a pregnant employee or an employee on maternity leave as long as the reason is entirely unconnected to their pregnancy or maternity. For example, you may be able to dismiss an employee for stealing company goods 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 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.
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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.
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.
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.