Dismissal during pregnancy, or maternity, adoption or shared parental leave
It is possible to be dismissed (sacked or fired) when pregnant or during family-related leave (maternity, adoption or shared parental leave), but your dismissal should be fair. You should not be dismissed because of your pregnancy or family-related leave.
This article provides advice on rights and entitlements that apply to dismissal during pregnancy and family-related leave:
- Fair dismissal – the basics
- Dismissal during pregnancy
- Dismissal during or shortly after family-related leave
- Notice period and pay
- Frequently asked questions (FAQs)
For other information and advice, see our other pages on:
- Unfair dismissal
- Maternity and Pregnancy Discrimination – a guide to your rights
- Pregnancy and Maternity Discrimination: Frequently Asked Questions
If you are pregnant and facing redundancy, see our page on Redundancy while pregnant, or on maternity, adoption or shared parental leave.
If you are pregnant and being asked to return to work but are concerned about the risks due to COVID-19, see our page on Coronavirus (COVID-19) – Rights for new and expecting parents.
Fair dismissal – the basics
In order to fairly dismiss any employee, regardless of their pregnancy or family leave status, employers must have a fair reason and use a fair and reasonable procedure.
If an employer does not have a fair reason or does not use a fair and reasonable procedure, or the dismissal is considered automatically unfair, then the affected employee has a claim for unfair dismissal.
For more information on:
- What is a fair reason for dismissal?
- What is a full and fair procedure?
- What is automatic unfair dismissal?
…see our article on Unfair dismissal.
Dismissal during pregnancy
It is possible for an employer to dismiss a pregnant employee by following the normal rules of fair dismissal outlined above.
A pregnant woman can be fairly dismissed if the main reason for dismissal is unconnected to her pregnancy. If the reason for dismissal is related to her pregnancy, this is likely to amount to unfair dismissal and discrimination.
Examples of reasons related to pregnancy include illness or sick leave taken due to pregnancy, time off needed for antenatal appointments, or poor performance due to pregnancy-related fatigue.
Capacity, performance and pregnancy
Pregnancy can be physically and mentally taxing. If you are unable to do your job because you are ill, you may need to take sick leave. See our page on Your rights if you are ill during pregnancy.
If you are unable to do your job because it is unsafe for you or your baby, or you are less able to do your job because of your pregnancy, your employer should treat this as a health and safety issue and make adjustments for you. They should not treat it as an issue of sickness, incapability or poor performance. See our page on Do I have to be put on sick pay because I can’t do my usual work during pregnancy?
Your employer must make sure that working conditions do not put you or your baby’s health at risk. As soon as your employer has been informed in writing that you are pregnant (this can include a sick note for pregnancy-related illness), and a risk arising from your work has been identified, a personal health and safety assessment must be done for you. For more information, see our page on Health and Safety rights for pregnant women.
Dismissal during or shortly after family-related leave
It is not necessarily unlawful to dismiss an employee while they are on maternity, paternity, adoption or shared parental leave. However, the dismissal must be for a fair reason and following a fair procedure.
If you are dismissed because you took or intended to take family-related leave, or for a reason connected to your leave, you may have a claim for automatic unfair dismissal and discrimination.
While on family-related leave, you have the right to return to your old job. Your rights differ slightly depending on the type and length of leave taken. If you are not given your old job back, this may amount to unfair dismissal and discrimination.
Return to work – Maternity and Adoption Leave
When you go back to work after Ordinary Maternity Leave (the first six months of maternity leave) you have the right to return to your old job on your old terms and conditions.
When you go back to work after taking Additional Maternity Leave (any part of the second six months of maternity leave) you have the right to return to your old job on your old terms and conditions unless it is “not reasonably practicable”, in which case your employer must offer you a suitable alternative job on similar terms and conditions.
The rules for Adoption Leave are the same.
Return to work – Shared Parental Leave
The rules for Shared Parental Leave (SPL) are similar. If you take SPL, you have the right to return to the same job if you take 26 weeks or less of statutory leave in total (including maternity, paternity, and shared parental leave).
If you take more than 26 weeks of statutory leave in total, then you have the right to return to your old job on your old terms and conditions unless it is “not reasonably practicable”, in which case your employer must offer you a suitable alternative job on similar terms and conditions. For more information, see our page on SPL – Nuts and bolts and top tips.
It is very rare for it to “not be reasonably practical” to give you your old job back. For more information, see our article on What happens when I return to work at the end of my maternity leave?
Dismissal and statutory pay
If you are dismissed during maternity leave you are still entitled to receive Statutory Maternity Pay or Maternity Allowance for the full period, or until you get a new job. If you get notice pay, your employer may deduct maternity pay for the same period from the notice pay.
If you are dismissed after the start of your first ‘block’ of Shared Parental Leave, you should receive Shared Parental Pay for the full period, or until you get a new job. If you get notice pay your employer may deduct Shared Parental Pay for the same period from the notice pay.
If you are dismissed during paternity leave after your child is born, you should still receive your paternity pay for the full period, or until you get a new job. If you get notice pay your employer may deduct paternity pay for the same period from the notice pay.
If you are dismissed after the beginning of the week during which you were notified of being matched with a child for adoption, you should still receive Statutory Adoption Pay for the whole period, or until you start a new job. If you get notice pay your employer may deduct adoption pay for the same period from the notice pay.
Notice period and pay
If you are dismissed during pregnancy or family-related leave, you are entitled to a paid notice period (unless your dismissal was due to gross misconduct or a serious breach of your employment contract).
What notice period am I entitled to?
If your employer is dismissing you, by law they must give you a minimum amount of notice – this is known as statutory notice. How much you get depends on how long you’ve been employed. If you have been employed by your company for 2-12 years, you will get one full weeks’ notice for every year you have worked for the company up to a maximum of 12 weeks.
However, most contracts will have a different period of notice – this is called contractual notice.
Your employer should give you whichever notice period is longer.
What notice pay am I entitled to?
If your notice period covers a period of your family leave, notice pay is a complex issue and the rules are not very clear. How much pay you are entitled to depends on whether your contractual is at least one week longer than your statutory notice period.
If your contractual notice period is at least 1 week more than the statutory notice period, your employer only has to pay SMP/ShPP/SAP during the notice period (for the weeks that you are entitled to it). For instance, if you entitled to 4 weeks’ contractual notice and 3 weeks’ statutory notice, your employer does not need to pay you notice according to your contractual wages for parts of your notice period that you are on statutory leave. Your employer only has to pay your notice according to your contractual wages for periods that you would have been working, plus your full SMP/ShPP/SAP entitlement.
If your contractual notice period is at least 1 week less than the statutory notice period, then you would be entitled to full pay for the notice period according to your contractual wages. If you are receiving SMP/ShPP/SAP for some or all of this period, then this would be offset/included against any notice period you would receive. For instance, if you are entitled to 2 weeks’ contractual notice, and 3 weeks’ statutory notice, you would be entitled to your full pay for 3 weeks less any SMP/ShPP/SAP payments you will be entitled to during that period. You should still receive your full SMP/ShPP/SAP entitlement.
You employer can keep you employed until the end of your notice period, or choose to give you pay in lieu of notice (PILON). In order to give you PILON, your employer must put a clause in your contract allowing for it. If you are given PILON, your employment ends immediately and you do not need to serve your notice period.
If your contract allows your employer to give PILON, your employer can deduct your SMP/SAP/ShPP from the payment (but they must still pay your full SMP/SAP/ShPP entitlement). If your contract does not allow your employer to give you PILON, and they want to PILON anyway, they cannot deduct your SMP/SAP/ShPP and should give you full notice pay plus your full SMP/SAP/ShPP entitlement.
Because the law is not clear, many employers choose to pay full notice pay plus SMP/SAP/ShPP. If this is not the case, and you are unclear about your employer’s calculation, you should seek advice.