During maternity leave | Dismissal, redundancy, constructive dismissal and complaints procedures

You can be dismissed if there is a fair reason for the dismissal and your employer follows a fair procedure. You must not be dismissed if the reason is because of your pregnancy or maternity leave. The pregnancy or maternity leave does not have to be the only reason for the dismissal - it will be pregnancy or maternity discrimination if it is a substantial or effective reason. For example, if you are absences which include pregnancy related absences and sickness absence unrelated to your pregnancy this would still be pregnancy discrimination.

Yes, generally you should appeal against the decision setting out why you believe the dismissal was due to your pregnancy or because of your maternity leave. 

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

Yes, 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  on maternity leave.
• You are not chosen for redundancy because you are  on maternity leave.
• The selection criteria and how they are assessed do not disadvantage you because of your pregnancy or maternity leave.
• 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 leave.

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. 

It is advisable to ask the reason why you may be made redundant, to see if you can put forward reasons why you should not be made redundant. You could 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 there is a genuine redundancy situation.
• If you are the only employee made redundant, why you were selected and what consideration was given to putting other employees at risk.
• When your employer first considered there was a redundancy situation.
• Who was in the selection pool.
• What were the selection criteria used and how were they measured.
• What was your score, how was it assessed 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 would have been suitable for you, ask if you were considered and, if not, why not.

If you are not told about a suitable alternative job because you are on maternity leave, this is likely to be maternity discrimination.

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

Your employer should not take into account any criteria that would disadvantage you because of your pregnancy, pregnancy related sickness or maternity leave, for example:

• All pregnancy related absence should be ignored.
• If you have fewer clients or customers because of your  maternity leave.
• If your performance is marked down because of pregnancy related sickness.

Yes. It is advisable to explain to your employer why the selection criteria disadvantages you because of your pregnancy, pregnancy related sickness or maternity leave, for example, because they are based on your performance when you had pregnancy related sickness. 

Yes. If you are made redundant during your maternity leave your employer is legally required to offer you a suitable alternative vacancy if one is available. If others are made redundant, you get preference over them. 

For example, if you are not offered a suitable alternative job and the reason for this is because you cannot start until the end of your maternity leave, this would be maternity discrimination.

Yes. If you are made redundant before your maternity leave you do not have an automatic entitlement to be offered suitable alternative work in preference to other employees (see dismissals and redundancies). You must be considered for alternative work like other employees.  

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 have been discriminated against, for example if your job responsibilities have been given to another employee because of your maternity leave, you could resign and claim constructive dismissal. But, you need to be sure that you want to leave and can afford to do so.

Constructive dismissal is difficult to prove so seek advice, for example, from your union or from a solicitor. You cannot rely on getting compensation through bringing an employment tribunal claim as you cannot be sure you will win.

You should only resign when you are certain that you cannot continue working for your employer, not because you have been advised to do so or are relying on winning a tribunal claim. 

You may want to take into account:

• Whether your health is being badly affected by what is happening at work.
• Your finances: can you afford to resign?
• How soon you will be able to get another job: it is often easier to get a job when you are working.
• The strength of any claim you have. It is best to get professional advice on this.

You should write to your employer to explain why you are resigning. You should include the main reasons why you decided to resign and the last incident if there was one. It may be advisable to take advice about the exact wording but the letter should be written by you.

It will depend on the circumstances. If you cannot afford to resign, you may have no choice but to wait until you have another job. If you take a claim of constructive dismissal you can argue that you would have resigned earlier but could not do so for financial reasons. In the meantime you should write to your employer to make it clear that you object to the discriminatory treatment so it cannot be said that you accepted it. 

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

•  Your employer behaved so badly (for example discriminating against you), that all trust and confidence has broken down between you.
• You resigned because of your employer’s behaviour, not for a reason which is unconnected to their behaviour.
• You did not wait too long before you resigned as if you do, it may be assumed that you accepted the treatment by continuing to work as normal.  

You can ask questions about the way you have been treated under an informal ACAS procedure, though the employer is not legally obliged to respond. There is an ACAS Code which sets out the procedure for asking such questions and how an employer should respond. ACAS recommend you should follow these steps:

1. Provide your details and details of your employer and any manager  who might have discriminated against you.
2. State the reason for the treatment, for example because you were pregnant, off work with pregnancy related sickness 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  you went on maternity leave.
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.

It is advisable to try to resolve the situation informally if possible. If this does not succeed, raise your concerns more formally in writing. Below are some of the options:

• Talk to your manager or human resources department, and explain your concerns.
• Speak to your union, if there is one, and ask them to raise your concerns with your employer.
• Send an email, or write to your manager 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 out their legal obligations to you.
• Raise a formal grievance, following your employer's grievance procedure.
• Seek free advice from  EASS, Maternity Action, Working Families, or a CAB.
• Contact ACAS about early conciliation.
• Ask a lawyer to write to your employer as a last resort.

Yes, it is advisable to have a meeting to talk about your concerns unless you cannot because you are ill or your baby is ill. Think of another way of having a discussion, for example over the telephone.

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.

Your employer should follow the ACAS Code and guidance. 

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.  It is generally easier to find a job whilst you already are in work than out of work.
• 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, arguing that you were entitled to do so because of how you were treated, for example if you were harassed. This would be constructive dismissal. You should take legal advice first as it is not easy to prove.