Pregnancy Related Dismissals
With detailed coverage of the law relating to redundancy when on maternity leave.

In any one year there are around 441,000 pregnant women at work. Unfortunately, despite this and the fact that women make up nearly half of the workforce, pregnancy related dismissals and the detrimental treatment of pregnant women is still rising. According to the Employment Tribunal Services’ statistics in 2004/2005 there were 1,345 such claims submitted with the Employment Tribunals, an increase of 175 claims on the previous year.

The Equal Opportunities Commission (‘EOC’) in July 2005 published a report on this subject. Key findings were that more than seven in ten pregnant women treated unfairly at work are suffering in silence. The report claimed that unless the current situation changes, one million pregnant women are likely to experience discrimination at work over the next five years. Jenny Watson, Acting Chair of the EOC, said:
" It is shocking that 1 million women over the next 5 years could find themselves sacked, demoted, bullied or isolated at work simply for having a baby. Pregnancy discrimination has a huge impact on their lives, but the harm it does to our economy affects us all." It's time for honesty about the scale of the problem. Employers - particularly small businesses - need more help in managing pregnancy at work if they are to reap the benefits of retaining pregnant staff. More than a quarter of businesses cannot name a single maternity entitlement.

441,000 is the number of employed pregnant women per year (Source: Register of Live Births and the Millennium Cohort Study). The EOC has found that 45% of these suffer pregnancy discrimination (around 198,000 women per year) and that 30,000 women each year lose their jobs because of their pregnancy. Only 3% of those who experience a problem lodge a claim at an employment tribunal.

Under section 99 of the Employment Rights Act 1996 (“ERA”) a woman who is dismissed by reason of her pregnancy, childbirth or maternity leave or other pregnancy related reason is treated as having been unfairly dismissed. There is no qualifying period of employment needed to bring such a claim. In order to establish that her dismissal was automatically unfair under section 99 of the ERA, she will need to prove that the only or principal reason for her dismissal was a reason connected to her pregnancy.

Pregnant women treated detrimentally due to their pregnancy, childbirth or maternity leave may also have claims under section 47(C) of the Employment Rights Act 1996. This section states that an employee has the right not to be subjected to a detriment for a reason that relates to pregnancy, childbirth or maternity, maternity leave, parental or paternity leave or time off to look after dependents.

In pregnancy cases, in order to establish that she has suffered a detriment under section 47C of the ERA, she will need to show that the only or principal reason that her employer subjected her to a detriment was for a reason connected to her pregnancy. "A detriment" could be any disadvantage, such as excluding a pregnant woman from a training course because she might be absent for a reason related to her pregnancy.

In addition, dismissal and/or detrimental treatment may also amount to direct and/or indirect sex discrimination under section 1 of the Sex Discrimination Act 1975. In order to establish unlawful direct sex discrimination, it will be necessary for her to prove that but for her pregnancy she would not have been dismissed or suffered a detriment. The question is whether the pregnancy was a substantial or effective cause, a substantial reason or important factor in the dismissal or other less favourable treatment. In order to show that the treatment amounts to indirect sex discrimination, the pregnant woman will have to show that her employer imposed or applied a criterion or practice that indirectly discriminated against her or had a disproportionate effect on her as a pregnant woman.

The significance of claims being brought under the Sex Discrimination Act is that compensation is unlimited and injury to feelings can be claimed. Claims under s99 and s 47C of the Employment Rights Act 1996 are subject to the cap for compensation, which is currently £56,800 with no award for injury to feelings.

Other areas in which pregnant women can be treated detrimentally or less favourably are in terms of not being given pay rises or her pay rise being lower than her non-pregnant colleagues, non payment or reduced bonus payments, reduced or non-existent promotion prospects. Some pregnant women are effectively sidelined, demoted or intentionally disregarded in the workplace, others are over burdened so that they leave or do not return after their maternity leave. Unfortunately, the misguided and the wilful discriminators still believe that women with children are not committed, are unreliable and as such have reduced career prospects.
Incidentally, a woman on maternity leave has the same "protected status" as a woman who is pregnant. The same considerations apply to detriment or dismissal suffered during maternity leave as to detriment or dismissal suffered during pregnancy.

Examples of pregnancy discrimination

Anne notifies her employer on 26 May that she is pregnant. Anne is off sick for four weeks in July due to high blood pressure as a result of the pregnancy. Anne is then dismissed for her poor sickness record. Under her contract of employment she can be dismissed for over 15 day’s sickness in one year. In Brown v Rentokil [1998] IRLR 445 the European Court of Justice found that dismissing for pregnancy related sickness, even if a man could have been dismissed for the same period of sickness absence, is discriminatory. Therefore, Anne could potentially argue that her dismissal was automatically unfair, that she suffered a detriment due to her pregnancy and that she has suffered direct and indirect sex discrimination. She may also have other claims that are unrelated to her pregnancy.

Mary is in sales – she has a fantastic area and is one of the top performing sales people in the Company. During maternity leave the Company don’t tell her about any planned reorganisation but when she returns her area has been reorganised, her best clients given to another sales person and her earning potential slashed. There is no real reason given for the reorganisation. Mary can point to negative attitudes shown to her when she announced that she was pregnant. Mary’s choice on returning is to accept the changes or resign and claim sex discrimination, detriment and unfair dismissal.

Louise is a senior marketing manager. She is the only person working in that role in a small team. Soon after she goes on maternity leave the Company appoints a second senior marketing manager to the team. During her maternity leave the Company then decides that it only wants one senior marketing manager in the team and claims that the new role is different to that which Louise was previously doing. Louise refuses to be interviewed for what is essentially her old job and is dismissed as redundant. Under the special maternity rules governing redundancy during maternity leave Louise has a right to be offered any suitable job that is available. The Tribunal would have no hesitation whatsoever in finding this sex discrimination and unfair dismissal. The special rules on redundancy dismissals during maternity leave are set out below. This is a classic case of the Company considering that someone who was employed during maternity absence is better than the maternity leaver so they go through hoops to justify why they can dismiss the maternity absent employee.

Rachel is a secretary in an engineering company. She announces her pregnancy and the atmosphere changes. She begins to be sidelined, she is not invited to organise a conference which she has always previously done, she is not asked to attend a training course that others go on, her requests for time off for antenatal appointments are always met with distrust and granted grudgingly and comments are made such as ‘I don’t expect you will want to return’. She begins to suffer from high blood pressure caused by the stress of working in such an environment together with the anxiety of carrying her first child. She takes days off sick here and there and is told to attend a disciplinary hearing on the grounds of her not being committed. She brings a claim in while still employed in respect of suffering a detriment.

Chelsea is a nanny to a solicitor. When Chelsea announces that she is pregnant she is dismissed by reason of redundancy 2 weeks later. There is no ostensible reason why the solicitor doesn’t need a nanny and nothing in the domestic arrangements has otherwise changed. Chelsea has had no warning that redundancy was on the cards and although nothing has been written down she always understood that her employer expected to employ a nanny until the child started Pre School. A good rule of thumb is to say the closer the decision to dismiss to the announcement of pregnancy the more likely it is that the Tribunal will draw the inference that the real reason was pregnancy. This is especially the case when there has been no hint of redundancy prior to the announcement.

Redundancy during maternity leave

Regulation 10 of the Maternity and Parental etc Regulations 1999 is a pregnant woman’s nuclear weapon if she is being dismissed by reason of redundancy while on maternity leave. In short it allows her to jump the queue to obtain any available vacancy that is suitable. It is a form of legal positive discrimination. It is such an important section that we have set it out here in full:

(1) This regulation applies where, during an employee’s ordinary or additional maternity leave period, it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment.

(2) Where there is a suitable available vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment which complies with paragraph (3) (and takes effect immediately on the ending of her employment under the previous contract).

(3) The new contract of employment must be such that:

(a) the work to be done under it is of a kind which is both suitable in relation to the employee and appropriate for her to do in the circumstances, and

(b) its provisions as to the capacity and place in which she is to be employed, and as to the other terms and conditions of her employment, are not substantially less favourable to her than if she had continued to be employed under the previous contract.

Note this only applies to dismissals by reason of redundancy – not dismissals for other reasons such as capability or some other substantial reason.

The question of whether a job is ‘available’ is, apparently, to be determined by reference to the ordinary meaning of the word i.e. is it in its widest sense ‘available’. This means the question is ‘is there a job to fill’ and questions about why this person shouldn’t fill it are irrelevant. See the case of Community Task Force v Rimmer [1986] IRLR 203, [1986] ICR 491, EAT. In this case a woman’s position was redundant while she was on maternity leave. There was a job available but the organisation has funding arrangements that made it clear that the third party funder could and did direct that the post was to be offered to another person. The appeal tribunal held that the post in question was still ‘available’. This meant that the job had to be offered to the employee made redundant whilst on maternity leave if automatic unfair dismissal was to be avoided. The third party providing the funding was not the employer and had no contractual relations with the employee.

Regulation 10 is an example of permitted positive discrimination in that the woman on maternity leave can jump the queue to get the alternative job. It is almost an automatic right to get the job. There has been one case, only at the tribunal level and not reported, involving The Body Shop retail chain where the Tribunal held that although the section provides for positive discrimination in favour of the maternity returner over and above equally or better qualified men, the job would not be suitable if the woman were able to perform its duties but to do so relatively incompetently. Hence the test is ‘in its widest sense is the job available’ and secondly if it is it at all suitable for the employee. Suitable connotes some sort of test as to whether the job is suitable for the employee. In our opinion it is a very low test – i.e. the job is suitable unless it would be seriously unsuitable.

Other issues in respect of redundancy dismissals when on maternity leave which the employment tribunal will consider are as follows: (this summary broadly follows the facts of Louise’s case above).

• Has the company satisfied the Tribunal that there existed a ‘redundancy situation’ within the definition of redundancy contained in section 139 of the Employment Rights Act 1996 (‘ERA’)?
• If so, was that the reason for the Claimant Employee’s dismissal?
• Was the dismissal of the Claimant Employee automatically unfair under section 99 ERA because the reason or principal reason for the dismissal is of a kind prescribed in Section 99 ERA and the 1999 Regulations, reg 20 or because it took place in prescribed circumstances (i.e. relating to pregnancy, childbirth, maternity, ordinary, compulsory or additional maternity leave)?
• Was the dismissal automatically unfair because the other position was a ‘suitable available vacancy’ within the meaning of that phrase in Regulation 10 of the Maternity and Parental Leave Etc Regulations 1999?
• If the dismissal was not automatically unfair either by reason of s99 ERA or Regulation 10 as above, was it nevertheless unfair in all the circumstances including the size and administrative resources of the employer within the meaning of s 98(4)–(6) ERA (the general test for unfair dismissals)?
• Sex Discrimination - Detriment: - was the Claimant Employee unlawfully discriminated against on grounds of her sex or for any reason connected with pregnancy, childbirth maternity leave etc pursuant to section 6 of the Sex Discrimination Act 1975 other than in respect of the refusal to allow her to return to work?
• Sex Discrimination - Dismissal - was the refusal by the Respondent Company to allow the Claimant Employee to return to work directly sex discrimination pursuant to section 6 of the Sex Discrimination Act 1975?