You can dismiss an employee if there is a fair reason for the dismissal and you follow a fair procedure. For example, if you discover that an employee has been dishonest, you can take disciplinary action and dismiss her, provided you follow a fair procedure as set out in the ACAS Code of Practice. //www.acas.org.uk/index.aspx?articleid=2174
Yes, you must write to the employee setting out the reason for her dismissal.
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 the business’s financial situation.
- A reduction in work or clients, so there is less work to do.
- A reorganisation due to having too many employees doing the same work.
Yes, you can make an employee redundant when she is on maternity leave provided that:
- There is a genuine redundancy situation which is not caused by the maternity leave itself;
- You ensure any women who have been on maternity leave, are currently on maternity leave, or are planning to go on maternity are not disadvantaged;
- You consult the employee on maternity leave in the same way as other employees. If she cannot attend meetings at work, find another way of consulting, for example by telephone, meeting nearer her home or at home (if agreed);
- The selection process, including selection criteria and their scoring, does not disadvantage the employee because of her pregnancy or maternity leave;
- If the employee’s role is made redundant during maternity leave, you are legally required to give her the first option on any suitable alternative work, which is available. She must be considered before any other employee. It is your responsibility to identify a suitable alternative available position and offer it to your employee. It is not enough to tell the employee to search the intranet to find a suitable alternative job.
What is the position if an employee is on a fixed-term contract which comes to an end during her maternity leave?
Employees on fixed-term contracts have similar maternity and employment protection rights to permanent employees. If you do not renew a fixed-term contract because of maternity leave this would be maternity discrimination. She should be offered a suitable alternative work like permanent employees.
Yes. An employee on maternity leave must be consulted in the same way as all other employees. If she cannot come into work to attend meetings you should consider other ways of consulting her, by telephone or visiting her at home or meeting in a convenient place if she prefers. Failure to do so would be maternity discrimination.
It should cover:
- 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 use a selection process to decide who to make redundant it must be transparent; known by everyone it applies to and non-discriminatory. The selection criteria should be objective and measurable. Typical criteria include:
- individual skills, qualification
- performance or aptitude for work
- attendance and absence record
- disciplinary record, and
- customer feedback.
You should avoid criteria that would disadvantage an employee because of her pregnancy, pregnancy related sickness or maternity leave, for example:
- If sickness absence is taken into account, any pregnancy related absence should be ignored.
- You should not give an employee low scores because she has fewer clients/customers or has not met targets because of her pregnancy/maternity leave.
- If her performance was below her usual standard because of pregnancy related sickness, this should not be taken into account. .
It is a difficult balance working out how to remove a disadvantage from a woman on maternity leave without giving her an advantage over a man, who might argue he has been treated less favourably. Any action you take to remove a disadvantage associated with maternity leave should not go further than necessary to remove that disadvantage.
Must I offer an employee an alternative job if I need her to start immediately and she cannot because she is on maternity leave?
Yes. If you do not offer a woman on maternity leave a suitable alternative job because she cannot start the job immediately, this would be maternity discrimination.
See the Acas guidance on managing redundancy for pregnant employees or those on maternity leave.
The alternative job must be suitable and appropriate in the circumstances. Suitable alternative work means that the job must be no worse than her previous role in relation to location, terms, conditions and status.
If there is more than one suitable alternative job you are not legally required to offer her the option of which one she wants. Your obligation is to offer her a suitable alternative job.
Can I tell an employee on maternity leave to find a suitable alternative job herself and to apply for it?
No, you must identify any suitable alternative job and offer it to her. An employee on maternity leave who has been selected for redundancy must be offered a suitable vacancy before any other employee. If you do not do this, her redundancy may be automatically unfair dismissal.
If you offer a suitable alternative job to a woman on maternity leave and she turns it down, without a good reason, she loses her right to a redundancy payment.
If there is no suitable alternative vacancy, a woman can be made redundant.
during her maternity leave provided the reason for redundancy is not connected to her pregnancy or maternity leave and you have followed a fair redundancy process.
Constructive dismissal is when an employee resigns because she believes you have discriminated against her or behaved in a way that is a fundamental breach of her contract.
To prove that she has been constructively dismissed an employee must show that:
- you have behaved so badly (for example discriminating against her), that all trust and confidence has broken down between you
- she resigned because of your behaviour, not for a reason which is unconnected to your behaviour
- she does not wait too long before she resigns; if she does you can argue that she accepted the treatment by continuing to work as normal
It is good practice to meet with her to discuss why she says that you have behaved in a way that has meant trust and confidence has broken down and plans to resign, as there may have been a misunderstanding. For example, she may think that her job has been taken by her maternity locum when this is not the case.
What must I do if an employee complains about being treated unfavourably because of maternity leave, and I do not agree?
It would be good practice to listen to her concerns, and explain the situation from your point of view to answer any questions she might have. For example:
- If there has been a misunderstanding, explain the reasons. For example, if she believes that other employees received a pay rise, but she did not, explain why she did not.
- If she was promised a promotion, 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.
- 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 maternity leave, explain why there is a redundancy situation and why it is not related to her maternity leave.
- If she is concerned about her work being changed on her return from maternity leave, you must assure her that it will not be changed or agree an alternative which is acceptable to her.
If there has been no informal attempt by the employee to discuss her concerns before her grievance, it is sometimes worth trying to resolve it without going through the whole grievance procedure, if your employee agrees. If the employee does not agree, then you should investigate the grievance see the ACAS guide on how to deal with grievances.
Yes, an employee can ask questions under an informal ACAS procedure. Although you are not legally obliged to respond, it is best to do so because if your employee 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 your discrimination claim.
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 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 your discrimination claim.
Last updated: 25 Jun 2018