Dismissal during Pregnancy
If an employee is dismissed during pregnancy (including if she is dismissed by reason of redundancy or a fixed term contract is not renewed), she must be provided with a written statement of the reasons for her dismissal, whether or not she requests such a statement.
An employee must not be dismissed because she is pregnant or has taken pregnancy-related sick leave. She must also not be dismissed because she intends to take maternity leave, or will not be able to complete a probation period or a fixed term contract because of pregnancy. If dismissed for such a reason, an employee may have an automatic unfair dismissal claim and/or pregnancy discrimination. This applies irrespective of the employee’s length of service.
The employee should be paid her full Statutory Maternity Pay entitlement once she has qualified for it even if she is dismissed.
Redundancy during pregnancy
If an employee’s position is made redundant before her ‘qualifying week’ (the 15th week before the expected week of childbirth) she will not qualify for Statutory Maternity Pay (SMP) but may be able to claim Maternity Allowance from the JobCentre Plus. If she is made redundant in or after the qualifying week and she meets the qualifying conditions for SMP, she is entitled to receive SMP for the full 39 week period.
An employee who is made redundant during her pregnancy will be entitled to any redundancy and/or notice pay that she qualifies for. See Redundancy during maternity leave below.
It is unlawful to select a woman for redundancy because she is pregnant. She may have a claim for unfair dismissal (if she has two years’ service), automatic unfair dismissal and pregnancy discrimination (irrespective of her length of service).
Dismissal during Maternity Leave
If an employee is dismissed during maternity leave (including if she is dismissed by reason of redundancy), she must be provided with a written statement of the reasons for her dismissal, whether or not she requests such a statement.
An employee must not be dismissed because she has given birth. She must also not be dismissed because she has taken maternity leave, or because she has availed herself of any of the benefits of Ordinary Maternity Leave. If dismissed for such a reason, an employee may have an unfair dismissal claim. This applies irrespective of the employee’s length of service.
The employee should be paid her full Statutory Maternity Pay entitlement once she has qualified for it. She should continue to be paid Statutory Maternity Pay even if dismissed.
Redundancy during Maternity Leave
If an employee’s position is made redundant during Ordinary Maternity Leave or Additional Maternity Leave, she is entitled to be offered a suitable alternative vacancy, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer. The new contract must be offered before the end of the original contract and it must take effect immediately on the ending of the original contract.
The new contract must be such that:
• the work to be done by the employee is both suitable and appropriate for her to do in the circumstances
• the terms and conditions of her employment are not substantially less favourable to her than if she had continued to be employed under the original contract.
Employers should note that an employee on maternity leave has a right to be offered any suitable alternative vacancies that exist. She should be offered it before other employees and does not have to attend interviews or selection procedures. This special protection is provided for a woman on maternity leave as she may be about to give birth, may have a small baby to look after or may have been absent from the workplace for some time.
If the employer offers the employee a suitable alternative vacancy and she unreasonably refuses it, she may forfeit her right to a redundancy payment.
The employee must be consulted where there is a potential redundancy situation and a fair procedure (taking into account any applicable statutory dispute resolution procedure) must be followed by the employer, notwithstanding the employee’s absence on maternity leave.
It is strongly recommended, if an employee’s position is to be made redundant, that the employer seeks more detailed information and speaks with Acas.
An employee must not be selected for redundancy for a reason connected to pregnancy, childbirth or absence on maternity leave. If the employer does not establish a fair reason for the employee’s dismissal, it may face an unfair dismissal and pregnancy/maternity discrimination claim, irrespective of the employee’s length of service.
Redundancy and notice pay
If an employee is to be dismissed by reason of redundancy during pregnancy or maternity leave, she should receive redundancy pay in the normal way. This means statutory redundancy pay and any applicable contractual redundancy pay. Any time spent by the employee on maternity leave, whether Ordinary Maternity Leave or Additional Maternity Leave, should be counted as continuous service when assessing her length of service for the purpose of calculating her Statutory Redundancy Payment.
To calculate the amount of Statutory Redundancy Pay employers can use the redundancy payments calculator here.
An employee who is dismissed by reason of redundancy during pregnancy or maternity leave is entitled to be given notice if she has been in her job for at least one month. The notice period will depend on the contract of employment. Employees are entitled to a minimum statutory notice period of one week’s notice after one month’s service and after two years’ service, a week’s notice for each year of employment, up to a maximum of 12 weeks. If the contract of employment provides for notice of at least a week more than the statutory minimum notice period, the statutory provisions do not apply.
An employee is entitled to receive contractual notice pay during pregnancy and may be entitled to receive it during maternity leave, depending on the terms of the contract. If the employee is entitled to receive notice pay under the statutory provisions, she is entitled to receive it during pregnancy and maternity leave. The employer may offset any payments of SMP against statutory notice pay.
The employee must also be paid any outstanding holiday pay.
An employee who has qualified for SMP should continue to be paid SMP for the full 39 week period even if she is made redundant and the employer will be reimbursed by HM Revenue and Customs.