For female employees who are pregnant or on maternity leave, protection both from unfair dismissal and unlawful discrimination due to pregnancy-related absence exists from day one of employment, regardless of the length of the absence.
Often discrimination occurs when a pregnant female employee is dismissed when they have less than one year’s service. Unfortunately for their employers, pregnancy dismissals are an exception to the rule that you have to have been employed for at least 12 months before you bring an unfair dismissal claim, and female employees also have special protection if made redundant whilst on maternity leave. Employers must offer them any suitable available position and first refusal and they do not need to attend an interview. Failure to comply means that the pregnancy or maternity discrimination dismissal is automatically unfair and may also be deemed sex discrimination, which is not subject to any cap on compensation made following an employment tribunal claim.
Despite this, female employees are commonly dismissed under the following circumstances:
• On return from maternity leave their position simply ‘vanishes’ because it has offered to somebody else in a restructure they were not made aware of
• A genuine restructure results in redundancies but the employer is not aware of the right of a female employee on maternity leave to be offered suitable alternative employment before anybody else is offered the role
• Sickness is used as a weighting criteria during a redundancy programme despite employers being obliged to ignore pregnancy-related sickness in the redundancy selection process
• They are treated less favourably for a reason related to her pregnancy, e.g. absence or maternity leave
• They are selected for redundancy without good reason because they are working part-time or flexibly
To dismiss, make redundant or otherwise treat a female employee in this situation less favourably in relation to a pay rise, promotion or training, is classed as discrimination and the consequence for an employer of failure to comply is a discrimination claim for unlimited employment tribunal compensation, either for injury to feelings or for future loss of earnings and benefits.
If you believe that you have been unfairly dismissed or treated unfairly because of your pregnancy and you’re thinking of making a claim for unfair dismissal compensation or pregnancy discrimination, get in touch with our team of employment solicitors today for specialist employment law advice.