Dismissing an employee who is pregnant or on maternity leave

January 4, 2024

Navigating the complex legal landscape surrounding the dismissal of an employee during pregnancy or maternity leave can be challenging for employers. Failing to follow the correct procedures can expose businesses to the risk of unfair dismissal and discrimination claims.

When Might Dismissal be Considered Unfair or Discriminatory?

Employees on ordinary maternity leave have the right to return to their previous job on no less favourable terms. After additional maternity leave, the right changes to an entitlement to return to the same role or a similar one in terms of duties, status, and reward if a return to the original role is not feasible. It is automatically unfair to dismiss or select an employee for redundancy due to pregnancy or maternity leave. Any attempt to dismiss or subject an employee to detriment for these reasons would be discriminatory.

Grounds for Fair Dismissal During Pregnancy or Maternity Leave

Although dismissal based on pregnancy or maternity is prohibited, certain circumstances can justify fair dismissal. For instance, if there is clear evidence of gross misconduct, a thorough investigation, discussion with the employee, and adherence to disciplinary procedures can permit dismissal. If an employee's role becomes redundant during maternity leave, a fair dismissal is possible if the selection is not based on pregnancy or maternity and a non-discriminatory redundancy process is followed with adequate consultation.

Positive discrimination is allowed in maternity and redundancy situations. An employee on maternity leave is entitled to a suitable alternative vacancy (assuming there is one) without the need for an application or interview, prioritising them over other 'at risk' candidates.

Notice and Maternity Pay Entitlements

If an employee is dismissed during pregnancy or maternity leave, statutory maternity leave ends on the last day of employment. Statutory maternity pay (if eligible) continues until the exhaustion of entitlement. Notice pay depends on the contractual notice period and maternity pay status:

  1. If the contractual notice exceeds statutory notice, by more than a week, only statutory maternity pay is required.
  2. If statutory maternity pay is exhausted and contractual notice exceeds statutory notice, by more than a week, no payment is required during the notice period.
  3. If the contractual notice is the same as, or within a week of, statutory notice, full pay is due for the notice period, with maternity pay included within that payment if applicable.

In summary

Employers should seek early legal advice, especially when considering dismissal during pregnancy or maternity leave. In redundancy situations, objective evidence and exploration of suitable alternatives are crucial. Communication with the employee on leave, avoidance of discriminatory actions, and careful consideration of dismissal timing are essential.

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