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Employment tribunals - automatic unfair dismissal - pregnancy

This advice applies to Scotland

When a tribunal looks at your claim for dismissal, there are certain legal tests that they will apply. One of these tests is how long you've been working for your employer. Generally, you must have been in your job for a certain length of time before you can claim unfair dismissal.

However, there are certain reasons for dismissal which a tribunal will decide are automatically unfair. If you're dismissed for any of these reasons, you will be able to claim, regardless of how long you've worked for your employer. Dismissal for pregnancy is an automatic unfair reason for dismissal.

Dismissal for pregnancy is also considered to be discrimination and you can make a separate claim for this in addition to a claim for unfair dismissal.

This page tells you more about what you can do if you think you've been dismissed because you're pregnant or have given birth.

If you've been dismissed because you're pregnant

If you can show a tribunal that the main or only reason that you've been dismissed was because you're pregnant or are due to give birth, your dismissal will be automatically unfair. You will also be able to claim pregnancy discrimination. Your employer can't escape liability by arguing that it was reasonable to dismiss you in the circumstances or that you hadn't been employed for long enough.

Dismissal because of pregnancy includes dismissal for:

  • pregnancy or any reason connected with it, for example, a pregnancy-related illness
  • having given birth or any reason connected with it
  • taking maternity leave
  • being suspended from work on medical grounds under health and safety law. This could be, for example, if you're told you're not allowed to work because you're pregnant, have recently given birth or are breast feeding
  • exercising any of your rights under your contract of employment while you're on maternity leave. This doesn't include your right to be paid
  • being made redundant during, or at the end of, your maternity leave, and not being offered a suitable alternative job when there was one available.

For your claim of automatic unfair dismissal for pregnancy to succeed, it's essential that your employer knows or believes that you're pregnant. You could prove this by:

  • proof that you told you employer you were pregnant.This could be an e-mail, letter, or a witness who heard you tell your employer you were pregnant
  • a sick note from your GP which refers to your pregnancy and which was given to your employer. However, it's best for you to tell your employer directly that you're pregnant
  • a copy of the Maternity Ceritificate Mat B1 form that you gave to your employer to claim Statutory Maternity Pay.

If your employer argues that the reason for your dismissal is not to do with your pregnancy

Employers rarely admit that they have dismissed an employee for being pregnant. You may have had no previous problems with your performance at work, but as soon as you told your employer you were pregnant they started finding fault with your performance. If they then dismissed you, this is a clear indication that the real reason for your dismissal was because you were pregnant. This is discrimination and your dismissal was automatically unfair.

You may be able to show the dismissal was automatically unfair if your employer has always been happy with your work and you've had good appraisals.

You're also entitled to written reasons if you're dismissed at any time during your pregnancy. If your employer fails to provide these without a good reason, you can complain to a tribunal and could also be awarded up to two weeks' pay in compensation.

If you make a claim for unfair dismissal and sex discrimination during pregnancy, it's up to your employer to prove that your dismissal was for a fair reason and not because of your pregnancy.

There may be circumstances when you can be dismissed during pregnancy for fair reasons, such as gross misconduct or persistent poor performance. However, except in the most serious cases of gross misconduct, your employer will be expected to have warned you about the misconduct and carried out the correct disciplinary process.

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