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

You should not extend the probation period if the reason for your employee’s poor performance is because of her pregnancy or pregnancy related illness. But, if extending her probation period is justified by the extent of poor performance before she became pregnant, you can do so because the reason for the extension is not related to her pregnancy. 

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, 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, but only if the dismissal is not related to the employee’s:

  • pregnancy
  • pregnancy related illness  
  • pending maternity leave, or
  • sex.

If you dismiss an employee who is pregnant you must provide her with a written explanation about why she was dismissed.

If the employee has worked continuously for you for at least two years you must also show there is a fair reason for the dismissal and that you followed a fair procedure. For what you need to do for the dismissal to be fair see:  www.acas.org.uk/dgcode2009.

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. 

You should first find out why she says she has been discriminated against and then try to reassure her that you will take steps to investigate (if necessary) in order to resolve her concerns. If she has already resigned and you think that this is because of a misunderstanding you may want to ask her to reconsider her resignation. It is best to take advice.

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 need to make sure that you do not disadvantage a pregnant woman because of her pregnancy. There is a general guide on redundancies at  https://www.gov.uk/redundant-your-rights/overview. There is also a detailed Equality and Human Rights Commission/ACAS guide for employees and employers on ‘managing redundancies for pregnant employees and those on maternity leave’: //www.equalityhumanrights.com/publication/managing-redundancy-pregnant-employees-and-those-maternity-leave.

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.

You need to consult all employees about:

  • Reasons for redundancy and the posts affected.
  • Considering alternatives to compulsory redundancies, 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.

You should make sure that any pregnant employees off work, for example due to a pregnancy related illness, have the same access to consultation information as other employees.

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.

It is important first to consider how she might be disadvantaged because of her pregnancy       or maternity leave and try to remove any possible disadvantage.  For example:

  • Pregnancy related illness may affect her performance so should be discounted.
  • She may miss out on what’s been happening at work, such as information on workplace developments so make sure she is updated.
  • If there is to be an interview try to hold this at a time to suit the employee and not too close to the birth.
  • If an interview process is required, make sure they are given sufficient notice (for example to make childcare arrangements and to catch up with work-related developments).

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.

This may happen, for example, if a woman on maternity leave is automatically given a top score for performance in order to remove any disadvantage because she cannot be properly scored while on maternity leave. She may then avoid redundancy because she scores higher than a man. The man is then disadvantaged as a result if he is made redundant and could claim he had been discriminated against because of his sex.

If it is possible to remove any disadvantage suffered by a woman on maternity leave without disadvantaging the man, this is the best option. For example, if you are assessing employees’ performance over a period when a woman is on maternity leave, you could use a different period of assessment period for her, which does not disadvantage her because of her pregnancy or maternity leave. 

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.

It would be discrimination to refuse to offer such a job to an employee who is about to go on maternity leave because she cannot start the job until the end of her maternity leave.

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.

It will depend on the circumstances but in any situation, if an employee suggests she has been treated badly because of her pregnancy and this is not the case, it is good practice to discuss her concerns, reassure her why any treatment was not due to her pregnancy, or say that you will investigate it. It is good practice to explain the situation from your point of view and clarify any misunderstandings. For example:

  • If there has been a misunderstanding, set out why. For example if she believes that other employees received a pay rise, but not her, you could explain that no-one received a pay rise if that is the case, or say why she did not.
  • If she had an expectation of being promoted, because she was promised this, but she believes that has not happened because of her pregnancy, explain why she was not promoted and explain how she may be promoted in the future. Alternatively, you could reconsider her promotion if this is possible.
  • If the allegation is about another employee’s treatment of her, say that you will investigate and get back to her.
  • If she has been put at risk of redundancy and believes she is the only one and the reason is her pregnancy, explain why there is a redundancy situation and why it is not related to her pregnancy. If possible, answer any questions she has.
  • If she is concerned about her work being changed after she told you of her pregnancy, it is best practice to agree that it should not be changed or agree an alternative which is acceptable to her.
  • If you have criticised her performance and she says this was affected by pregnancy related illness, you could explain how your criticisms are unrelated to her pregnancy.

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

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

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.

You are not legally obliged to respond to an employees request for information, but if she brings a claim a tribunal may look at whether you have answered relevant questions, how you have answered them, and take this into account when making their decision on her discrimination claim. 


Last updated: 24 Jun 2016