During pregnancy | Dismissal, redundancy and complaints procedures

A dismissal covers the following situations:

  • Where your employment is terminated, usually by the employer telling you that you are dismissed and giving you a date when your employment will end. This includes dismissal for redundancy.
  • Where you have a fixed term contract,  which is an agreement to work for your employer for a limited period, and this comes to an end and is not renewed.
  • Where you resign because of a serious breach of contract by your employer, such as discrimination. This is called constructive dismissal.

You should ask for the meeting to be re-arranged and explain this is because you have pregnancy related illness.  If the meeting is held without you and you are disciplined this may be pregnancy discrimination.

Yes, you can be dismissed when you are pregnant, provided the dismissal is not related to your pregnancy, pregnancy related illness or because you are about to go on maternity leave

If you think you may be dismissed, for example, because your employer’s attitude to you has changed and you are being excluded or ignored, or you have been told  your job is being reviewed, it is advisable to discuss your concerns with your manager to:

  • find out more about your employer’s thinking and seek reassurance,
  • express your concerns,
  • put forward possible solutions (for example how you think it would be least disruptive to cover your maternity leave), and
  • point out that it would be unlawful to dismiss you for a reason related to your pregnancy.  

If you are dismissed because of your pregnancy, you should appeal against the decision in writing, setting out clearly all the reasons you believe the dismissal was due to your pregnancy. To prove discrimination, you need to be able to show that your pregnancy, pregnancy related sickness/absence or maternity leave was a significant, important or effective cause of your dismissal. It is advisable to take notes of all conversations you have with your employer.   

To prove discrimination, you need to be able to show that your pregnancy, pregnancy related sickness/absence or maternity leave was a significant, important or effective cause of your dismissal. It is advisable to take notes of all the conversations you have with your employer.

Your pregnancy or pregnancy related sickness/absence does not have to be the only or even the main reason for your dismissal but it must be an important, or substantial reason.

Yes, your employer must write to you setting out the reason for your dismissal. If they do not do so, you should write and ask for reasons.

Your probation period should not be extended if the reason for your poor performance is related to your pregnancy. But, if the reason for extending your probation is due to your poor performance before you became pregnant, or is not related to your pregnancy, your probation can be extended.

If you have been discriminated against, for example your job responsibilities have been given to another employee because of your maternity leave absence, you could resign and claim constructive dismissal. But, you need to be sure that you want to leave and can afford to do so. You cannot rely on getting compensation through bringing an Employment Tribunal claim: constructive dismissal is not easy to prove so if possible take advice, for example, from your union if you are a member or a solicitor before you resign. 

To demonstrate you have been constructively dismissed you need to show that:

  • your employer behaved so badly, which includes discriminating against you, that trust and confidence between you has fundamentally broken down
  • you resigned because of your employer’s behaviour, not for a reason which is not connected to their behaviour, and
  • you did not wait too long before you resigned.  

It will depend on the circumstances. If you cannot afford to resign, you may have to wait until you have another job. You can argue that you would have resigned earlier but could not do so for financial reasons, though you should not wait too long. You risk the Tribunal deciding that you resigned because you got the new job rather than because of the way the employer behaved. You should take advice before resigning. 

A redundancy situation is where there is either a closure of the business (or particular workplace) or a reduced need for employees to do work of a particular kind.  This might cover:

  • where there is no need for the particular job because, for example, of a reorganisation
  • a need for job cuts because of your employer’s financial situation
  • a reduction in work or clients, so there is less work to do, or,
  • a reorganisation due to having too many employees doing the same work.

Yes, the Equality and Human Rights Commission and ACAS have produced guidance for employers and employees on managing redundancies for pregnant employees and those on maternity leave. There is also a guide setting out your entitlement to redundancy pay, notice, time off to find a new job. 

Yes, you can be made redundant when you are pregnant, provided that:

  • there is a genuine redundancy situation,
  • you are properly consulted; you must not be left out of the consultation process because you are pregnant,
  • you are not chosen for redundancy because you are pregnant or have had pregnancy related sickness,
  • the selection criteria and how they are assessed do not disadvantage you because of your pregnancy or pregnancy related illness, and
  • your employer has properly considered whether there is a suitable alternative job for you, even if you are not able to take the job until the end of your maternity leave.

It is advisable to ask the reason why you might be made redundant, to see if you can give reasons why you should not be made redundant. You should ask questions about:

  • why there is a redundancy situation.
  • whether other employees are at risk; if there have been a lot of redundancies your employer is more likely to be able to show that they were genuine.
  • if you are the only employee to be made redundant, why you were selected and what consideration was given to putting other employees at risk of redundancy.
  • when your employer first considered there was a redundancy situation.
  • who was in the selection pool.
  • what were the selection criteria and how were they measured.
  • what was your score and how did it compare to others put at risk.
  • whether any employees (at risk of redundancy) have been offered alternative jobs, with details of the jobs.  If any of the jobs

If you can show that there is not a genuine redundancy situation and you are being made redundant because of your pregnancy or pregnancy related sickness, this would be unlawful pregnancy discrimination. There is also another guide setting out your entitlement to redundancy pay, notice, time off to find a new job.  

Yes, your employer must consult you in the same way as all other employees and give as much warning as possible.

Yes, your employer must consult you about a redundancy situation, if you are off  work with pregnancy related illness. You could be consulted by a telephone call or your employer may visit you at home if you agree. You should be given the same information as other employees. 

In a redundancy situation, your employer should consult you about:

  • Reasons for redundancy and the posts affected.
  • Considering alternatives to redundancy, such as voluntary redundancies, or reduced working hours.
  • The selection criteria for those employees at risk of redundancy.
  • How the employee’s redundancy selection assessment was carried out.
  • Any suitable alternative work.

If you are not told about a suitable alternative job because you are off work with pregnancy related illness, this is likely to be pregnancy discrimination.

Your employer should decide which employees are doing similar work. These are the employees who should be considered for redundancy. Your employer must then decide what selection criteria to follow to decide which employees to make redundant.

The criteria must be objective and measurable.  Typical criteria include:

  • individual skills, qualifications
  • performance or aptitude for work
  • attendance and absence record
  • disciplinary record
  • customer feedback

You should not be disadvantaged by your pregnancy, pregnancy related illness or the facts that you are about to go on maternity leave. For example:

  • If sickness absence is taken into account, any pregnancy related absence should be ignored.
  • You should not be marked down against any assessment criteria because you have few clients or customers because of your pregnancy and/or because you are about to go on leave.
  • Your performance should not be marked down because of pregnancy related sickness.

You must not be disadvantaged because of your pregnancy or pregnancy related illness. If you could not meet your targets because of pregnancy or a pregnancy related illness this is likely to be pregnancy discrimination

If the reason for not offering you a suitable alternative job is because you cannot start it for a few months because of your maternity leave, this would be maternity discrimination.

Yes. If you are made redundant before you go on maternity leave you do not have an automatic entitlement to be offered any suitable alternative work in preference to other employees (see dismissals and redundancies). You must be considered for alternative work like other employees.  But, if you are made redundant while you are on maternity leave, you must be offered any suitable alternative vacancy first – in preference to other redundant employees who are not pregnant.

The alternative job must be suitable and appropriate for you in the circumstances. This means it must be no worse than your previous job in relation to location, terms, conditions and status.

If you are offered a suitable alternative job and decide not to take it, and you are made redundant, your employer can refuse to pay you redundancy pay.  

If you are offered a job at a different location and this means additional childcare and travelling costs, it may not be suitable. This means you could reject the job and would be entitled to a redundancy payment.

It is advisable to resolve matters amicably first. If this does not succeed, raise your concerns more formally in writing. Below are some of the options:

  • Ask your union representative to raise your concerns with your employer.
  • Raise your concerns informally with your manager or human resources.
  • Write, or send an email to your employer explaining your concerns and setting out what you would like to happen.
  • Refer your employer to the Equality and Human Rights Commission, ACAS or Maternity Action website so they can check what their legal obligations are to you.
  • Speak to the Health and Safety Executive if you are concerned about your employer’s failure to comply with their health and safety obligations.
  • Raise a formal grievance in writing.
  • Seek free advice from Citizens Advice Bureau, Maternity Action or Working Families, or Equality and Advisory Support Service.
  • Ask a lawyer to write to your employer - but this should be a last resort.
  • Contact ACAS for early conciliation.

Yes. It is advisable to have a written record of all conversations and meetings. You are allowed to take a union representative or a work colleague into meetings. If you go to a meeting on your own, make notes of what was said either during the meeting, or immediately afterwards. If something has been agreed, write to your employer confirming in brief what you discussed and the outcome. Then you will both have a record. 

You should raise a formal grievance when you have not been able to settle things informally and you do not think that your employer will take your concerns seriously unless you follow the grievance procedure.

You should follow your employer’s grievance procedure before lodging a tribunal claim. If you are successful at the tribunal and you are awarded compensation, the amount you receive may be reduced if the tribunal decides that it was unreasonable for you not to take a grievance.

Your employer should follow the ACAS Code and guidance.

Yes. You can write to your employer and ask questions to help you decide whether you might have a legal case against your employer.  There is an ACAS Code which sets out the procedure for asking such questions and how an employer should respond. ACAS recommend you follow these steps:

1. Provide your details and details of your employer and any employee who might have discriminated against you.

2. State the reason for the treatment, for example because you were pregnant, off work with pregnancy related illness or were on maternity leave.

3. Describe briefly the facts which you say amounted to discrimination including the date and individuals involved.

4. Say whether it was unfavourable treatment, that is pregnancy discrimination or maternity discrimination, or indirect sex discrimination.

5. Say why you think the treatment was discrimination, for example you were dismissed only a week after saying you were pregnant.

6. Ask questions about why you were treated as you were, for example, why you were not appointed, promoted, offered training, given a pay rise or why you were dismissed.

Your employer is not legally obliged to respond to your questions about why you were treated unfavourably. If you take a formal claim, a tribunal may look at whether the employer has answered questions or not and how they have answered them, and take that into account when making their decision on your discrimination claim.  

It is important to work out what you want and this will influence what you do next. Depending on your circumstances you may want:

  • To remain in the same job but perhaps on a different working arrangement, such as varying or reducing your hours, or working for a different manager (if it is the manager who is causing problems).
  • To move to a different job in the same organisation,  subject to agreeing terms and conditions, such as pay, work, and/ or a sum of compensation.
  • To remain employed for an agreed period and look for another job.
  • To negotiate an exit package, while still employed. Consider how long it will take you to get another job, your loss of earnings, pension and benefits.
  • To resign and claim constructive dismissal, arguing that you were entitled to do so because of how you were treated, for example if you were harassed. You should take advice first as it is not easy to prove constructive dismissal.  

It would be unlawful victimisation to dismiss you for complaining about discrimination. However, some employers may react badly to a complaint against them, so making a complaint may lead to a deterioration in your working relationship.

Yes. In employment cases you must usually take legal action within three months (that is three months less one day) of the date of the discrimination or dismissal. The first step you need to take is to file a form with ACAS, which will give you more time to put in a claim to the tribunal. Where there has been continuing discrimination, that is a series of acts of discrimination, the time limit starts from the last act of discrimination. 

Yes. The time limit can be extended if there are special circumstances but it is advisable not to rely on this. You need to try and resolve matters with your employer within the three-month time limit. If you leave it any longer, your employer will know that you cannot bring a claim easily and have less reason to resolve matters with you.

You need complete an on-line form or speak to ACAS. Then there is a period of up to a month (which can be extended by two weeks) when ACAS will try to reach a settlement between you and your employer. 

Last updated: 12 May 2016