HR · 7 January 2022

Can You Dismiss A Pregnant Employee?

Can you dismiss a pregnant employee

Whether you’re dealing with an underperforming employee or facing redundancies at work, you might be wondering if you can dismiss a pregnant employee. The answer to this question is not straightforward as it depends on many different factors. However, it’s important to be aware of the legislation that you need to follow if you’re considering dismissing an employee who is pregnant at the time.

In this article, we’ll explain the legislation around dismissing a pregnant employee in the UK, as well as discussing other relevant employment legislation that you may need to be aware of.

Is dismissal during pregnancy legal?

Under UK employment law, it is legal to dismiss an employee who is pregnant. However, you will need to ensure that the reason for their dismissal is completely unrelated to their pregnancy, for example an ongoing performance issue that can be evidenced over a long period of time and began before the pregnancy.

If the employee has cause to believe that their dismissal has been influenced by their pregnancy, they may take their case to an employment tribunal and claim for unfair dismissal. For this reason, it’s important to ensure that you have clear evidence to show that the dismissal was unrelated to the pregnancy.

Before deciding to dismiss an expectant mother, we’d recommend seeking specialist advice from an experienced employment lawyer. They will be able to review your evidence and talk you through the options, helping to reduce the risk of a claim at an employment tribunal.

Pregnancy is a protected characteristic

The Equality Act 2010 outlines nine protected characteristics, against which is it illegal to discriminate. This means that if you discriminate against an employee as a result of these characteristics, including dismissing the employee, you could face a claim for unfair dismissal at an employment tribunal.

The nine protected characteristics are:

  • Age
  • Disability
  • Sex
  • Gender reassignment
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Marriage
  • Sexual orientation
As pregnancy and maternity is a protected characteristic, this means that an employer cannot unfairly treat or dismiss an employee who is pregnant. The pregnant employee must be treated equally to other employees and must not be disadvantaged as a result of their pregnancy.

Unfair dismissal during pregnancy

If an employee is dismissed during pregnancy, it’s essential that you ensure that the dismissal is fair. This means that the dismissal should be for a reason that is not related to pregnancy, and would have happened even if the employee was not pregnant.

Unfair dismissal during pregnancy reasons include:

  • That the employee is pregnant
  • That the employee intends to take maternity leave
  • That the employee has taken or plans to take paid time off to attend antenatal appointments
  • That the employee is on paid leave due to health and safety concerns
  • That pregnancy-related illness has led to absence or lateness
If any of these things are contributory factors or the sole reason for dismissal, it could amount to pregnancy discrimination.

Employment rights during pregnancy

Employment rights during pregnancy

When an employee is pregnant, they gain some extra employment rights. As an employer, you need to be aware of the rights of the legal rights of your pregnant employees, ensuring that they are treated fairly and that you do not face a claim at an employment tribunal later down the line.

Employees who are pregnant have four key rights in UK law. These are:

  • Maternity leave
  • Maternity pay or maternity allowance
  • Paid time off to receive antenatal care
  • To be protected against unfair treatment, dismissal or discrimination
Let’s take a look at each of those rights in more detail.

Maternity leave

Every employee has the right to up to 12 months of maternity leave when they are expecting a baby. This maternity leave can begin any time from 29 weeks of pregnancy, and the start date is decided by the employee.

During maternity leave, the employee is entitled to pay rises and will continue to accrue annual leave. They are also entitled to choose to return to work at any point during their maternity leave, provided they give the correct notice to the employer.

Maternity pay or maternity allowance

During maternity leave, the employee will be entitled to receive either maternity pay or maternity allowance, depending on how long they have been working for the company, and their weekly earnings. In the case of a premature birth or stillbirth after 24 weeks of gestation, the employee will still be entitled to maternity pay or maternity allowance.

Paid time off for antenatal care

Every employee is entitled to paid time off to receive antenatal care. This doesn’t just include medical appointments – it may also include any antenatal classes or parenting classes that are recommended by the employee’s doctor or midwife.

The father or partner of the pregnant woman is also entitled to unpaid time off work to attend two antenatal appointments. Most partners will use this time to attend the 12 week scan and the 20 week scan, but this can be decided by the partner or father.

Protection against unfair treatment, discrimination or dismissal

During pregnancy, the employee should be protected against unfair treatment, discrimination and dismissal. This means that the pregnancy employee cannot be treated unfairly, discriminated against or dismissed as a result of their pregnancy.

If an employee feels that they have been treated unfairly, discriminated against or dismissed as a result of their pregnancy, they may choose to make a claim at an employment tribunal. That’s why it’s essential to ensure that all employees are treated fairly, whether or not they are pregnant.

When did it become illegal to fire a pregnant woman in the UK?

Contrary to popular belief, it is not illegal to dismiss a pregnant employee in the UK. However, there are strict rules regarding when you can dismiss a pregnant employee that you must abide by.

You must never dismiss a pregnant employee as a result of their pregnancy. This includes if the dismissal is a result of time off due to pregnancy related illness.

If redundancies need to be made, every employee should be treated equally, whether or not they are pregnant. To ensure fairness, you should have set criteria against which employees are measured to make your decision, for example historic performance reviews and attendance (remember, pregnancy related absence should not be included in this).

If an employee feels that they have been unfairly dismissed as a result of their pregnancy, they may decide to make a claim at an employment tribunal for unfair dismissal. If you’re considering dismissing a pregnant employee, even if the reason is not related to pregnancy, it’s worth seeking specialist legal advice to ensure that you are not treating the employee unfairly. This will help to reduce the chances of a claim being made at an employment tribunal later down the line.

Health and safety during pregnancy

Health and safety during pregnancy

Expectant mothers should feel safe in the workplace and should not feel that they are putting themselves or their unborn child at risk when at work. When an employee informs their employer that they are pregnant, the employer should complete a risk assessment to ensure the safety of the worker and their unborn child.


 
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