Law guide: Employment

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Maternity leave and protection against detriment or dismissal

Maternity leave and protection against detriment or dismissal

Contents

Protection against detriment or dismissal

General protection

Employees are protected from suffering a detriment or dismissal for taking, or seeking to take, maternity leave. You must not subject an employee to any detriment by acting or deliberately failing to act, because she took maternity leave or sought to take maternity leave. This could include denying promotion, facilities or training opportunities which would normally have been made available to the employee.

If an employee believes you have treated her detrimentally then she can make a claim of sex discrimination at an employment tribunal.

Redundancy situations

If a redundancy situation arises at any stage during an employee's maternity leave and you may not be able to continue to employ her under her existing contract of employment then you must offer her (before that contract ends) any suitable alternative vacancies, where one is available. This includes a vacancy with an associated employer or with a successor to the original employer.

The new job must start immediately after the end of the original one and must:

  • Be suitable and appropriate for her to do (taking into consideration that she has a young infant to care for which may affect, for example, her working times and the location of her work place)
  • Have terms and conditions that are not substantially less favourable to her than if she had continued to be employed under the original contract

This requirement takes precedence over the general requirement to offer suitable alternative positions to all employees who are at risk of redundancy, i.e. an employee on maternity leave must be offered any suitable alternative vacancies first.

If you fail to comply with these requirements and dismiss the employee, the dismissal may be unfair. She may also have a claim for sex discrimination.

If you end up making an employee on maternity leave redundant because you had no suitable alternative work to offer her, or if you offered her suitable alternative employment which she unreasonably refused, then the dismissal may be fair.

Note that, on dismissal:

  • Her maternity leave period comes to an end, but
  • Her entitlement to statutory maternity pay (SMP) continues until the end of the 39-week SMP period (if it hasn't already ended).

The dismissal of an employee will be automatically unfair if you dismiss her - or select her for redundancy in preference to other comparable employees - solely or mainly because she:

  • Has taken maternity leave
  • Benefited from the terms and conditions of employment to which she was entitled during that leave
  • Failed to return from her maternity leave on time because you failed to give her any or adequate notification of the end date of her leave

Dismissal, selection for redundancy or other detrimental treatment in these circumstances may also amount to sex discrimination, for which employment tribunal compensation is uncapped.

It is still possible for you to fairly dismiss an employee who is on - or who has recently returned from - maternity leave. However, the reason for the dismissal must:

  • Be largely or wholly unrelated to her maternity leave
  • Not be for any other reason that is unfair or discriminatory

You must comply with the correct disciplinary and dismissal procedure (Which disciplinary and dismissal procedures must I follow?) when dismissing an employee.

You can fairly dismiss an employee you took on to replace an employee on maternity leave. However, make sure you inform them that their position is only for maternity cover before they start.