Dismissed whilst on maternity leave- is this automatically unfair?

04 December 2012

Numerous claims are lodged every year by women claiming that they have been discriminated against or unfairly dismissed on the grounds of their pregnancy.

Although great progress has been made to secure equality in the workplace over the years with the passing of legislation such as the Sex Discrimination (NI) Order 1976 and the Employment Rights Act 1996, the Industrial Tribunal still receives numerous claims every year from women claiming that they have been discriminated against or unfairly dismissed on the grounds of their pregnancy.

There are a number of protections available to women who find themselves in such a situation. Under the Employment Rights Act 1996 a woman who is dismissed by reason of her pregnancy, childbirth or maternity leave or other pregnancy related reason is treated as having been automatically unfairly dismissed. Furthermore, an employee does not need a minimum period of service to bring such a claim as there is no qualifying period of employment. In order to establish that her dismissal was automatically unfair under the Employment Rights Act, the dismissed woman will need to prove that the only, or principal reason for her dismissal was a reason connected to her pregnancy.

As pregnancy-related or maternity dismissals are discriminatory, a pregnant employee would not only be entitled to claim unfair dismissal but also unlawful sex discrimination. The significance for Employers of claims being brought under the Sex Discrimination Act is that compensation is unlimited and a monetary award for “injury to feelings" can be made even if no other loss has occurred. If an employee’s existing job becomes redundant while she is on maternity leave, she is afforded special protection. If the employer has a suitable alternative vacancy, on terms and conditions at least equal to those she is currently entitled to it must be offered to her in preference to any other employee similarly affected by the redundancy situation, but who is not on maternity leave.

If an employer fails to do so, any subsequent dismissal will be automatically unfair. Employers should beware that maternity and paternity rights are ever changing and evolving areas of law and therefore they need to exercise caution when embarking on any restructuring or redundancy plans. As always it is best to seek advice in advance of taking any action in order to avoid any unwanted claims further down the line.

Worthingtons Solicitors Employment law team advise Claimants and Respondents in all Industrial Tribunal and Fair Employment Tribunal matters.  Should you have any queries in relation to this article simply submit your enquiry in the form below and you will be contacted directly by one of the team.

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