Law guide: Employment

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Maternity leave and protection against detriment or dismissal

Maternity leave and protection against detriment or dismissal

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 they are at risk of being made redundant, you must offer them any suitable alternative vacancies, where one is available, before their contract ends. 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 them to do (taking into consideration that they have a young infant to care for which may affect, for example, their working times and the workplace location)
  • Have terms and conditions that are not substantially less favourable to them than if they had continued to be employed under the original contract

This requirement takes precedence over the general requirement to offer suitable alternative positions to other employees at risk of redundancy, i.e. an employee on maternity leave will have priority over others to be offered a suitable alternative vacancy.

For employees in England, Wales and Scotland, new laws expected to be in force from 6 April 2024 will extend the period during which they must be offered a suitable alternative vacancy:

  • Pregnant employees: the protection period starts from the point they notify you that they are pregnant.
  • Employees returning from statutory maternity leave: the protection period lasts until 18 months after either the child's date of birth (if you've been informed of it) or the first day of the expected week of childbirth (if you haven't).
  • Employees not entitled to statutory maternity leave (e.g. due to miscarriage during the first 24 weeks of pregnancy): the protection period ends 2 weeks after the end of the pregnancy.

If you fail to comply with these requirements and dismiss the employee, the dismissal may be unfair. They 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.

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