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Pregnant employee rights 02/08/2012
A pregnant employee has been fired without formal warning and past her probationary period. Can she lodge a claim for unfair dismissal?
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An employee has been sacked who is four-and-a-half months pregnant. She had no formal warnings and there were no sanctions on her record. She was also out of her probationary period, which ended three-and-a-half weeks earlier.
Her manager was informed of her pregnancy only five days before she was dismissed. No legitimate reasons were given for her dismissal and so the employee feels hard done by and as if she has been discriminated against due to her circumstances.
Her manager failed to inform the rest of the management team that she was pregnant and they were told only after she had been dismissed. She was employed by the business for approximately four months.
Is she able to lodge a claim for unfair dismissal even though she hadn’t been with the business for a year?
Legal verdict: Esther Smith
Esther Smith, partner at Thomas Eggar:
Yes she is. If she believes that the reason for her dismissal was related to her pregnancy (and from what you say about the circumstances surrounding her dismissal, I can see why she might arrive at this conclusion), she can pursue a claim for unfair dismissal - even if she does not have the required length of service for a “normal” unfair dismissal claim.
Pregnancy-related dismissals are one of the special categories for which the length of service requirement is lifted.
In any event, the employee also has protection against discrimination on the grounds of gender. But pregnancy would be grounds for a potential discrimination claim even if there were no attendant unfair dismissal situation. However, she would be best advised to pursue both claims together.
Legal verdict: Adam Partington
Adam Partington, Solicitor, Speechly Bircham LLP
Although there is a requirement for staff members who have commenced their employment before 6 April 2012 to have worked for a continuous period of one year before being eligible to bring an “ordinary” unfair dismissal claim, this criterion does not apply in cases that are deemed to be “automatically unfair”.
(Note that from 6 April 2012, the qualifying period for “ordinary” unfair dismissal claims increased to two years, but this only affects those who started employment on or after 6 April 2012).
Dismissing a female employee at any time, if the reason or principal reason for the dismissal is connected to her pregnancy, is automatically unfair. Therefore, there is no qualifying period. Even though she has only been with the business for approximately four months, she will still be eligible to bring a claim.
A claim for pregnancy-related discrimination can also be brought if the staff member has suffered less favourable treatment because of her pregnancy during the “protected period”.
The protected period begins at the start of a woman’s pregnancy and ends (if she has the right to ordinary and additional maternity leave) upon expiry of the additional maternity leave period or (if earlier) when she returns to work after the baby has been born.
If she does not have the right to maternity leave, the protected period will expire at the end of a period of two weeks, which starts at the end of the pregnancy. Because the dismissal occurred while the employee was pregnant, however, it took place within the “protected period”.
There are no minimum service qualifying periods for discrimination claims, which means it is not an issue that the staff member has only been employed for four months.
Based on the information that you have provided, it appears that she has potential grounds to bring the two claims referred to above. If she decides to lodge these claims, the employee must do so within three months of the date she was dismissed, otherwise it is likely that she will lose her right to bring them.
But it would be sensible for her to take legal advice before she decides to bring any claims as there may be other relevant factors to consider. These include the reasons given by former employer as to why she was dismissed, which may influence how she proceeds.
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