You couldn’t make it up.
Most employers know, for good or bad, that it is tricky to dismiss a pregnant woman.
But not impossible.
There are ways to part company if performance or attitude is bad, and they involve documenting meetings, setting deadlines etc, so that you can prove that the pregnancy is not the reason you’re dismissing them.
So we were shocked into silence when we received a call from a client saying that he had received an Early Conciliation form from ACAS (the first step in a tribunal case).
He had obviously dismissed someone without talking to us, so we asked for the details.
“Well, she only has 3 months service…”
So far so good, there is no protection for unfair dismissal under 2 years’ service.
“And she is 6 months pregnant…”
“And she has gotten quite big and can’t bend and do the cleaning, so I fired her”
Silence at our end. Absolute silence.
“It’s okay though, I told her I was firing her because she was pregnant…”
Maybe we could claim she misheard him?
“And I wrote her an email confirming that was the reason for firing her”!
No way out. At all.
This guy was now facing a potential claim for tens of thousands of pounds. Dismissing for one of the protected characteristics (pregnancy) is unfair from day one. Even worse, you have to prove that you are innocent; they don’t have to prove you are guilty.
So, we asked what the ex-employee was asking for.
“Reinstatement, not money”
Finally ,we get a break.
“Okay, so you reinstate her with immediate effect.”
“I don’t want to, she can’t do the job.”
“Okay, putting this in context,
- She works 2 hours a week for you.
- On minimum wage £7.38/hour.
- She has already said she will start her maternity leave at the end of her 8th month of pregnancy.
- Which is 6 weeks away.
- She has only been with you for 3 months, so she doesn’t qualify for maternity pay from you.
- She has also said that she isn’t coming back after maternity leave.
- So your total financial exposure from now on until maternity leave is:
- £7.38 * 2 * 6 = £88.56 plus holiday
At that price, he could pay her to sit at home or get her to do some of the cleaning tasks she can do and barely lose out financially.
Or he can continue with the pregnancy dismissal and have to pay her at least one year’s pay plus injury to feelings plus anything else her lawyer throws in.
Needless to say, he saw the wisdom of our recommendations and reinstated her.
Don’t assume that you can’t dismiss a pregnant employee if they are not performing. But equally don’t rush in there to dismiss, without making sure you have a watertight case.
And talk it over with an expert advisor before you do or say anything!