The slightly bizarre nature of UK employee rights while pregnant was raised in my mind by a recent Channel 4 programme on large families. It struck me that it was theoretically possible that you could recruit a young woman today and, with a little judicious timing on her part, she might be on maternity leave for the next decade or more!
Which brings me to main subject of this month’s article.
Can you dismiss a pregnant employee?
The answer is yes, but realistically only in two specific circumstances:
- The first is if the reason for dismissal has absolutely nothing to do with the pregnancy.
- The second is if you have deep (perhaps very deep) pockets!
To take the second question of the required depth of pocket first; you might do well if you could settle for £30,000. Dismissal for reasons related to the pregnancy is automatically unfair and the employee is entitled to compensation if they are unfairly dismissed. In one case that hit the headlines some years ago a young woman admitted a pregnancy on her first morning. She was dismissed on the grounds that a pregnant women could not be expected to manoeuvre caravans around her employer’s premises, a caravan park. It cost the employer c.£20,000 (some of it perhaps foolishly spent in fighting the case). She had done one hour’s work. Given the potential costs, it is surprising that there are still 2,000 claims a year against dismissals related to pregnancy.
But returning to the first question, of dismissal for reasons unrelated to the pregnancy, this is not as easy as it sounds. Whenever a pregnant employee is dismissed there will inevitably be the suspicion that it is somehow related to the pregnancy. It is for this reason that an employer must provide written reasons for dismissal whenever a pregnant employee is dismissed. It is very important to recognise that she is entitled to those reasons without making a request. The cost of failing to do this alone is two weeks pay for the employee. But it would also raise suspicions.
What you can be sure about is that the responsibility for showing that the reason for dismissal was not pregnancy related will almost inevitably fall entirely on you. So:
What can employers do?
1. Have clear performance criteria
Recruiting an employee who is already or who immediately becomes pregnant may be an irritating experience for an employer, especially a small employer. But that does not preclude her rights. An employee acquires the right to maternity leave the day she joins your employment (one might argue even before because you cannot not employ her simply on account of her being pregnant).
But many recruitments are in practice a mistake; they don’t work out. This can often be realised in the first month (or first week); which may be one reason why the law does not require an employer to give any notice within the first month of employment (unless there is a contractual entitlement).
You need to be able to show that what you expect in the first month is set out clearly and that you can show that others have been dismissed in the past for not meeting those criteria. Those criteria would need to be non-pregnancy related. Even so, no dismissal of a pregnant employee is necessarily safe.
2. Take the probationary period seriously
The alternative is to monitor her progress through her probationary period, because if she is not performing then gathering objective evidence is critical.
But wait a moment, why “her probationary period”? To monitor a female’s probationary period differently from a male’s probationary period would be sex discrimination. So if you take probationary periods seriously make sure you do so for all employees. Be just as rigorous with men as with women.
We often find that employers are very keen to include a probationary period; even though it has no particular standing in law. But unless you are going to take it seriously then it won’t offer you any advantage.
3. Use your procedures
Demonstrating a fair reason for dismissal is difficult, in most cases impossible, to do unless you have procedures in place and stick to them. Getting started early on performance or commitment issues is really important. It is usually too late when you learn an employee is pregnant. One of our clients was on the verge of dismissing an employee only to be told by her that she was pregnant and she then blamed her recent unreliability on that fact. The dismissal has only to be for a reason related to the pregnancy, not for the pregnancy itself, to be unfair. A Tribunal is likely to ask: “Would this have happened if she had not been pregnant?” – unless your answer is an unequivocal “yes”, and you can show it to be so, you will be struggling.
Of course, once again, use of procedures has to be just as stringent for other employees as it is for those who may fall pregnant.
4. Respect the employee’s rights
A pregnant employee has a wide range of rights and it is important to be cognisant of them if you are to avoid the risk of an employee using your failure as a basis for saying they have been dismissed by reason of pregnancy. The employee’s peers need to recognise those rights too. We have come across older employees who may have had trouble-free pregnancies themselves being scathing of a younger employee who was not so lucky. This kind of treatment in itself is not very likely to lead to the employee successfully claiming they have been dismissed, but… if you as the employer knew about harassment of a pregnant employee, and you chose to ignore it, then the employee might well claim constructive dismissal. With the “related to the pregnancy” tag on such a dismissal, you would be on the back foot. So take care that pregnant employees are treated with understanding not just by you but by their peers.
Finally, the QCS Maternity (Adoption and Paternity) policies have been reviewed and updated recently. Make sure you have read and are familiar with them.
Malcolm Martin – QCS Expert Human Resources Contributor
