Can I dismiss an employee that is pregnant or on maternity leave?

Is dismissal during pregnancy or maternity leave legal?

Understanding the rights of employees who are pregnant or on maternity leave is essential for employers, especially if you're considering dismissing someone in these circumstances.

Unless you follow the correct dismissal procedures, you risk leaving yourself and your business open to an unfair dismissal claim. 

In this article, Ella Bond, Senior Employment Solicitor, explains the legal options available to employers who are faced with having to dismiss an employee during pregnancy or whilst on maternity leave.

When might the dismissal of someone who is pregnant or on maternity leave be considered unfair or discriminatory?

During ordinary maternity leave the employee has the right to return to the job they left on no less favourable terms. After any additional maternity leave, the employee has the right to return to the job they left, or to a role similar in duties, status and reward if it is not possible to return to their original role.

As an employer, it is automatically unfair to dismiss or select an employee for redundancy because they are pregnant or because they have taken (or are planning to take) maternity leave. A pregnant woman is also protected against being subjected to a detriment for those reasons. Any attempt to dismiss or allow a detriment to be suffered by an employee because she is pregnant or on maternity leave, would also likely lead to a discrimination claim.

On what grounds can I dismiss someone that is pregnant or on maternity leave?

Whilst you cannot dismiss someone because of maternity or pregnancy, you can in some circumstances fairly dismiss an employee that is pregnant or on maternity leave.

For example, if there is clear evidence of gross misconduct, dismissal would be permitted, provided a thorough investigation had been carried out, the employee had the opportunity to discuss this with you and defend themselves first, and you reached a reasonable decision in line with your disciplinary procedure.

If an employee’s role becomes redundant whilst they are on maternity leave, provided the fact that the employee is pregnant or on maternity leave is not the reason for selection for redundancy and a non-discriminatory redundancy process with adequate consultation is implemented, a fair dismissal is possible.

It is important to be aware though, that positive discrimination is permitted in the area of maternity and redundancy. An employee on maternity leave is entitled to be offered a suitable alternative vacancy where one is available, without having to apply or interview for the job, and they are therefore prioritised over other ‘at risk’ candidates. This does not mean that others should be put ‘at risk’ instead, but if they are already at risk of redundancy along with the individual on maternity leave, if there is one available role, the individual on maternity leave is entitled to be offered the role first.

What are the notice and maternity pay entitlements when an employee is dismissed when pregnant or on maternity leave?

If an employee is dismissed whilst pregnant or on maternity leave, statutory maternity leave will end on the last day of the employee’s employment, usually at the end of their contractual notice period, but statutory maternity pay (provided the employee is eligible to receive it) should be paid until the employee’s entitlement is exhausted.

The amount of notice pay the employee on maternity leave will receive is dependent on their contractual notice period and whether they are still receiving statutory maternity pay at the time notice is given. The below may apply:

• If the employee’s contractual notice obliges you to give notice which is at least one week more than the statutory minimum notice period (one week per full year of service up to a maximum of 12), you only have to pay your employee statutory maternity pay during their notice period.
• If your employee’s entitlement to statutory maternity pay has been exhausted, and the contractual notice period is at least one week more than the statutory notice period, you will not be required to pay the employee during their contractual notice period at all.
• If your employee’s contractual notice period is less than a week more than their statutory notice period, then the employee is entitled to their full pay for their notice period, even if their statutory maternity pay has been exhausted. If the employee still has statutory maternity pay to be paid, that will be deducted from the full notice pay you make to them.

This can be complicated and so if you are unsure, our employment experts can help.

Summary

• Seek early legal advice on what your business needs to achieve, why and how, before taking action to dismiss;
• If there is a redundancy situation, gather the objective evidence for this and look at whether there might be a ‘suitable alternative’ role for the employee who is on maternity leave;
• Ensure that you are communicating with an employee on leave and that they are having access to the same information as other employees who are not on leave;
• Ensure that no action being taken can be viewed as discriminatory and that you have not directly or indirectly through any of your actions, inactions, policies or practices disadvantaged an employee who is pregnant or on maternity leave; and
• Consider the timing of any dismissal and what this means for payments to be made to your employee. If in doubt, arrange an initial no-obligation consultation with our employment law solicitors.