Employers obligations during pregnancy | Dismissal, redundancy and other disciplinary procedures

You can only take disciplinary action against a pregnant employee if the action is about a matter which is nothing to do with her pregnancy, for example if you think she has been dishonest. You must not take disciplinary action if this relates to your employee’s performance, which has been poor because of pregnancy related illness or another reason related to her pregnancy.

Yes, usually. You should fix a time for when she is well enough to attend. If you take action at a meeting when she cannot attend because of pregnancy related illness this may be pregnancy discrimination.   

Yes, you should allow an appeal against the decision and if possible it should be heard by a person more senior that the person who made the decision to dismiss the employee. 

In order to claim constructive dismissal your employee must show that:

• You behaved so badly, which includes discriminating against her, that trust and confidence between you has fundamentally broken down.
• She resigned because of your or your employee’s behaviour. 
• She does not wait too long before she resigns. If she does wait too long you could argue that she accepted the behaviour by continuing to work. 

You must follow a fair process. You must take the following steps:

• Identify whether and why there is a redundancy situation. If you are not sure see the Acas guidance.
• Consult any trade union (if there is one) and employees, including those who are absent with pregnancy related sickness or on maternity leave.
• Identify relevant employees likely to be affected by the redundancy (who may not be limited to the exact same work or grade).
• Draw up criteria for selecting people for redundancy which are relevant to the job going forward and which are transparent, objective, and capable of measurement.
• Identify who in your business will select those who will be considered for redundancy. The person should make him/herself familiar with the work, experience, qualifications, skills of all affected employees including employees who are absent due to pregnancy.
• Consult all affected employees about the redundancy criteria and how they have been assessed so they can correct any mistakes.
• Ensure there is a fair procedure for considering suitable alternative work.
•  Ensure that you have a fair and transparent way of dealing with any appeal. Involve a more senior manager in the appeal if you can.

If you use a selection process to decide who to make redundant it must be transparent, objective and measurable. Typical criteria include:

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

If you have decided to use performance as one of your main selection criteria, you must ensure you do not disadvantage pregnant employees or those on maternity leave. For example:

• If the last performance assessment was done during pregnancy or maternity leave and showed lower scores than usual for this reason, this must not be taken into consideration against the selection criteria.
• If an employee missed the performance review cycle because of pregnancy related illness or maternity leave it is good practice to consider using a previous review and awarding the same score unless there is good reason (unrelated to her pregnancy) for giving a different score. She must not be disadvantaged if she missed the performance review cycle because of pregnancy related illness or maternity leave.

The following selection criteria may be discriminatory:

• Marking an employee down because of pregnancy related sickness or absence.
• Assessing a pregnant employee’s performance for a period when she was suffering from pregnancy related sickness – even if she did not take time off.
• Targets which were measured during a period when her work was affected by her pregnancy.
• Number and size of clients, when a pregnant employee has handed over her clients because of her impending maternity leave.
• In the absence of an actual appraisal, awarding her ‘average’ when in her previous appraisal she scored ‘good’ or ‘exceptional’(unless there is a reason unrelated to her pregnancy for awarding the lower grade).
• Criteria that disadvantage part-time workers, for example the ability to work when required or to work overtime.

The employee may assume that you are taking action because she is pregnant. You must show that this is not the case, for example by showing that you took the decision before you knew of her pregnancy.

Pregnant employees do not have priority over vacancies in a redundancy situation.  However, employees on maternity, adoption or shared parental leave do have priority and must be offered a suitable alternative job before others can be considered for it.

To decide if a job is suitable and appropriate the law says it must be no worse than an employee’s previous job with regard to location, terms, conditions and status and she has the capacity for the work.

For example, if the vacancy is at a different location and poses additional childcare and travelling problems for the employee it may not be suitable, in which case if she refuses it she would not lose her right to a redundancy payment.

If an employee raises a grievance and she has made no informal attempt to discuss her concerns before her grievance, it is sometimes worth trying to resolve it informally without going through the whole grievance procedure, if your employee agrees. If she does not agree, then you should investigate the grievance using the ACAS guide on how to deal with grievances. 

An employee can ask questions under an informal ACAS procedure and although you are not legally required to respond, it is advisable to do so as it could be taken into account if the case goes to the employment tribunal.

There is an ACAS Code, which sets out the procedure for asking such questions and how an employer should respond.

The following steps set out the main issues for a responder to consider when deciding on how to answer the questions.

1 – Agree/disagree with questioner’s statement.

The employer should consider if they agree, agree in part or disagree with the description of the treatment the questioner alleges they received, The responder should do some appropriate investigation then set out their version of the events.

2 – Responding to other questions

In addressing the questioner’s specific issues raised, the responder needs to consider and answer as appropriate. If a responder thinks some other questions are not relevant or unclear, they should clarify their purpose with the questioner to help them to reply appropriately. If a responder decides not to answer a question, they should explain why.